[1] The applicant, Godfrey Salano , filed an undated Notice of Motion herein on 4 th February 2026 seeking orders that the period spent in pre-sentence custody be taken into consideration. He brought the application pursuant to Section 333(2) of the Criminal Procedure Code, Cap 75 of the Laws of Kenya, and relied on his Supporting Affidavit filed in support of the Motion.
[2] The applicant averred that he was charged with robbery with violence contrary to Section 296(2) of the Penal Code and that after trial, he was convicted and sentenced to ten years’ imprisonment on the 5 th May 2020. He deposed that he did not appeal either the conviction or the sentence. He was however aggrieved that the sentence was ordered to commence from the date of conviction without any consideration being given to the period he spent in custody while awaiting trial. He therefore prayed that his application be allowed and the orders sought granted.
[3] The application was duly served on the respondent and was not opposed. Accordingly, the Court called for the record of the Magistrate’s Court in Kapsabet Magistrate’s Criminal Case No. 2894 of 2018: Republic v Godfrey Salano. A perusal thereof confirms that the applicant was indeed charged with two substantive counts of the offence of robbery with violence contrary to Section 295 as read with Section 296 of the Penal Code; and that he was found guilty of Count I and was convicted thereof accordingly. He was given the benefit of the doubt in respect of Count II of which he was acquitted under Section 215 of the Criminal Procedure Code. The applicant was thereafter on 5 th May 2020 sentenced to 10 years’ imprisonment.
[4] Section 333(2) of the Criminal Procedure Code provides that:
“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
[5] The record of the lower court confirms that the applicant was in custody from the date of his arrest on 20 th July 2018 to the date of his imprisonment on 5 th May 2020. The record further confirms that, in sentencing the applicant, the lower court did not take into consideration the period spent by the applicant in remand while undergoing trial. In effect, the 10 years’ imprisonment commenced from the date the applicant was sentenced by the lower court.
[6] In Ahmad Abolfathi Mohammed & Another Criminal [2018] eKLR the Court of Appeal held that:
“…By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012…”
[7] Accordingly, in the revised Judiciary Sentencing Guidelines (2023) (under Clauses 2.3.18 and 2.3.19) it is stated:
“2.3.18 Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.
2.3.19 Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and courts should make an enquiry particularly with unrepresented offenders – for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.
[8] I therefore find merit in the application. The same is hereby allowed and an order granted that the sentence of 10 years’ imprisonment imposed on the applicant on the 5 th May 2020 be and is hereby reckoned from the date of his arrest on 20 th July 2018.
Orders accordingly.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAPSABET THIS 30 TH DAY OF JULY 2026
[2] The applicant averred that he was charged with robbery with violence contrary to Section 296(2) of the Penal Code and that after trial, he was convicted and sentenced to ten years’ imprisonment on the 5 th May 2020. He deposed that he did not appeal either the conviction or the sentence. He was however aggrieved that the sentence was ordered to commence from the date of conviction without any consideration being given to the period he spent in custody while awaiting trial. He therefore prayed that his application be allowed and the orders sought granted.
[3] The application was duly served on the respondent and was not opposed. Accordingly, the Court called for the record of the Magistrate’s Court in Kapsabet Magistrate’s Criminal Case No. 2894 of 2018: Republic v Godfrey Salano. A perusal thereof confirms that the applicant was indeed charged with two substantive counts of the offence of robbery with violence contrary to Section 295 as read with Section 296 of the Penal Code; and that he was found guilty of Count I and was convicted thereof accordingly. He was given the benefit of the doubt in respect of Count II of which he was acquitted under Section 215 of the Criminal Procedure Code. The applicant was thereafter on 5 th May 2020 sentenced to 10 years’ imprisonment.
[4] Section 333(2) of the Criminal Procedure Code provides that:
“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
[5] The record of the lower court confirms that the applicant was in custody from the date of his arrest on 20 th July 2018 to the date of his imprisonment on 5 th May 2020. The record further confirms that, in sentencing the applicant, the lower court did not take into consideration the period spent by the applicant in remand while undergoing trial. In effect, the 10 years’ imprisonment commenced from the date the applicant was sentenced by the lower court.
[6] In Ahmad Abolfathi Mohammed & Another Criminal [2018] eKLR the Court of Appeal held that:
“…By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012…”
[7] Accordingly, in the revised Judiciary Sentencing Guidelines (2023) (under Clauses 2.3.18 and 2.3.19) it is stated:
“2.3.18 Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.
2.3.19 Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and courts should make an enquiry particularly with unrepresented offenders – for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.
[8] I therefore find merit in the application. The same is hereby allowed and an order granted that the sentence of 10 years’ imprisonment imposed on the applicant on the 5 th May 2020 be and is hereby reckoned from the date of his arrest on 20 th July 2018.
Orders accordingly.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAPSABET THIS 30 TH DAY OF JULY 2026