1. The Applicant, Edwin Onyancha Samuel, moved this Court by a Notice of Motion dated 02nd April 2025 brought under Section 333(2) of the Criminal Procedure Code seeking an order that the period he spent in pre-sentence custody be factored into the computation of his sentence. The application is supported by his Supporting Affidavit sworn on the same date.
2. The Applicant deposes that he was arrested on 05th April 2018, remained in remand custody throughout his trial, and was eventually convicted and sentenced on 03rd September 2020 in Criminal Case SO 14 of 2018 at the Nyamira Law Court. He was convicted of the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006 and sentenced to thirty (30) years’ imprisonment. He therefore prays that the period of approximately two years and five months spent in custody prior to sentencing be taken into account. The Respondent did not oppose the application.
Issue for Determination
3. The single issue for determination whether the Applicant is entitled to have the period spent in custody prior to conviction taken into account under Section 333(2) of the Criminal Procedure Code.
4. Section 333(2) of the Criminal Procedure Code provides:
“Subject to the provisions of Section 38 of the Penal Code, where a person is sentenced to imprisonment for an offence, any period during which he was held in custody in connection with that offence shall be taken into account in imposing the term of imprisonment.”
5. The Court of Appeal has repeatedly affirmed that sentencing courts are under a mandatory duty to credit pre-sentence custody. In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court held that failure to consider the remand period amounts to an error warranting correction.
Analysis
6. The Applicant was arrested on 05th April 2018, remained in continuous remand custody, and was sentenced on 03rd September 2020. The custodial period preceding conviction is therefore approximately two years and five months.
7. There is nothing on the record to show that the trial court considered or credited this period when imposing the sentence. The Court of Appeal has clarified that a mere acknowledgment that an accused “has been in custody” is not sufficient; the court must demonstrate that it took the period specifically into account.
8. The sentence of thirty years for the offence of incest is lawful. However, where the sentencing court fails to apply Section 333(2), the High Court is entitled to intervene for the sole purpose of giving effect to the statutory mandate without altering the lawfulness of the sentence.
9. I am therefore satisfied that the Applicant is entitled to the benefit of Section 333(2) of the Criminal Procedure Code.
Disposition
10. The application is merited and is hereby allowed. Accordingly, the Court orders as follows:
1) It is hereby declared that the Applicant is entitled to the benefit of Section 333(2) of the Criminal Procedure Code.
2) The period between 05th April 2018 and 03rd September 2020, shall be taken into account in computing the Applicant’s sentence of thirty (30) years’ imprisonment imposed in Criminal Case SO. 14 of 2018.
3) For avoidance of doubt, the Applicant’s sentence shall be deemed to run from 05th April 2018.
4) The Officer in Charge of the relevant prison facility shall adjust the Applicant’s sentence records accordingly.
2. The Applicant deposes that he was arrested on 05th April 2018, remained in remand custody throughout his trial, and was eventually convicted and sentenced on 03rd September 2020 in Criminal Case SO 14 of 2018 at the Nyamira Law Court. He was convicted of the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006 and sentenced to thirty (30) years’ imprisonment. He therefore prays that the period of approximately two years and five months spent in custody prior to sentencing be taken into account. The Respondent did not oppose the application.
Issue for Determination
3. The single issue for determination whether the Applicant is entitled to have the period spent in custody prior to conviction taken into account under Section 333(2) of the Criminal Procedure Code.
4. Section 333(2) of the Criminal Procedure Code provides:
“Subject to the provisions of Section 38 of the Penal Code, where a person is sentenced to imprisonment for an offence, any period during which he was held in custody in connection with that offence shall be taken into account in imposing the term of imprisonment.”
5. The Court of Appeal has repeatedly affirmed that sentencing courts are under a mandatory duty to credit pre-sentence custody. In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court held that failure to consider the remand period amounts to an error warranting correction.
Analysis
6. The Applicant was arrested on 05th April 2018, remained in continuous remand custody, and was sentenced on 03rd September 2020. The custodial period preceding conviction is therefore approximately two years and five months.
7. There is nothing on the record to show that the trial court considered or credited this period when imposing the sentence. The Court of Appeal has clarified that a mere acknowledgment that an accused “has been in custody” is not sufficient; the court must demonstrate that it took the period specifically into account.
8. The sentence of thirty years for the offence of incest is lawful. However, where the sentencing court fails to apply Section 333(2), the High Court is entitled to intervene for the sole purpose of giving effect to the statutory mandate without altering the lawfulness of the sentence.
9. I am therefore satisfied that the Applicant is entitled to the benefit of Section 333(2) of the Criminal Procedure Code.
Disposition
10. The application is merited and is hereby allowed. Accordingly, the Court orders as follows:
1) It is hereby declared that the Applicant is entitled to the benefit of Section 333(2) of the Criminal Procedure Code.
2) The period between 05th April 2018 and 03rd September 2020, shall be taken into account in computing the Applicant’s sentence of thirty (30) years’ imprisonment imposed in Criminal Case SO. 14 of 2018.
3) For avoidance of doubt, the Applicant’s sentence shall be deemed to run from 05th April 2018.
4) The Officer in Charge of the relevant prison facility shall adjust the Applicant’s sentence records accordingly.