A. INTRODUCTION
1. The Applicant, Geoffrey Kiplangat Kirui, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. After full trial, he was convicted and, on 2nd October 2025, sentenced to 10 years' imprisonment. By an Application dated 23rd March 2026, brought pursuant to Section 333(2) of the Criminal Procedure Code, the Applicant now seeks an order that this Court review his sentence to take into account the period he spent in custody prior to sentencing. He is clear, both in his Application and before this Court, that he does not appeal the conviction or the length of the sentence itself; his sole complaint is that the period he spent on remand was not factored into the computation of the sentence imposed.
2. The Applicant contends that although he remained in custody for the entire period between his arraignment and the delivery of the sentencing ruling, that period was not taken into account when the sentence of 10 years was imposed. He accordingly prays that this Court review the sentence in accordance with Section 333(2) of the Criminal Procedure Code, so that the time already spent in custody is properly credited.
3. Section 333(2) of the Criminal Procedure Code, and the proviso thereto, provide as follows:
“Subject to the provisions of section 38 of the Penal Code, every sentence shall be deemed to commence from, and to include, the whole of the day on which it was pronounced, unless the court otherwise directs:
Provided that where the person sentenced has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
4. The prosecution opposed the Application on the ground that the sentencing court had already factored the remand period into the sentence imposed. It was pointed out that paragraphs 16 and 17 of the Sentencing Ruling recorded that the sentencing judge had considered the time the Applicant spent in custody, noting in particular that he had not been released on bond pending trial. On that basis, the prosecution submitted that the sentence ought not to be disturbed.
B. ANALYSIS AND DETERMINATION
5. The import of the proviso to Section 333(2) is that where an accused person has been held in custody prior to sentence, the sentencing court is obliged to take that period into account in arriving at the appropriate sentence. The provision does not necessarily require an arithmetical deduction of the remand period from the sentence pronounced; what it does require is that the record demonstrate that the court applied its mind to the period spent on remand, and gave it real, practical effect in fixing the sentence, rather than a passing or formulaic acknowledgment that custody occurred.
6. I have carefully perused the proceedings and the sentencing remarks of the trial court. The Applicant was arraigned in court on 11th November 2023 and remanded shortly thereafter, remaining in custody throughout the pendency of the trial until 2nd October 2025, when the sentencing ruling was delivered. That is a continuous period in custody of approximately one (1) year and ten (10) months, which by operation of the proviso to Section 333(2) the trial court was obliged to take into account in fixing the sentence.
7. Turning to the Sentencing Ruling itself, I note that at paragraphs 16 and 17 the trial court did advert to the fact that the Applicant had been in custody throughout the trial and had not been released on bond. What the Sentencing Ruling did not do, however, is state, whether expressly or by necessary implication, what practical effect that period of custody was to have on the 10-year term imposed: there is no direction that the sentence commence otherwise than from the date it was pronounced, no arithmetical reduction referable to the remand period, and no indication that the term of 10 years was itself arrived at, in whole or in part, on account of time already served. A bare recital that an accused was in custody during trial, without more, does not by itself satisfy the proviso; the record must show that the custody period was given weight in fixing the sentence actually imposed.
8. This construction of Section 333(2) is consistent with the guidance of the Court of Appeal in Bethwel Wilson Kibor v Republic, Criminal Appeal No. 78 of 2009, [2009] KECA 143 (KLR), where the trial judge's failure to specifically state that he had taken into account the period the appellant had spent in custody was treated as an error going to the propriety of the sentence, notwithstanding that the fact of custody was otherwise known to the court. The principle was developed further by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic, Criminal Appeal No. 135 of 2016, [2018] eKLR, where the Court held that “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,” and that “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 conviction, because that amounts to ignoring altogether the period already spent in custody.” Applying that reasoning here, the mere observation in paragraphs 16 and 17 of the Sentencing Ruling that the Applicant had been in custody and was not on bond, without any consequential adjustment to the sentence or its commencement date, falls short of what Section 333(2) requires, for precisely the reason identified in Abolfathi Mohammed: it amounts, in substance, to acknowledging the remand period while nonetheless ignoring it in fixing the sentence actually served.
9. I do not accept the prosecution's submission that the reference to custody in the Sentencing Ruling, without more, is sufficient compliance with Section 333(2). To hold otherwise would reduce the proviso to a matter of form rather than substance, permitting a sentencing court to note the fact of remand and then disregard it entirely in fixing the term to be served — an outcome the Court of Appeal in both Kibor and Abolfathi Mohammed was at pains to guard against. The appropriate and least disruptive means of giving the proviso practical effect in this case, where the sentence of 10 years is not itself under challenge, is to direct that the term be computed as running from the date the Applicant was first taken into custody, rather than from the date sentence was pronounced.
C. DISPOSITION
10. For the foregoing reasons, I find and hold as follows:
(a) The Application dated 23rd March 2026 is allowed to the extent set out below;
(b) The sentence of 10 years' imprisonment imposed on 2nd October 2025 shall be computed as running from 11th November 2023, being the date the Applicant was first taken into custody, in compliance with Section 333(2) of the Criminal Procedure Code;
(c) For the avoidance of doubt, the conviction and the length of the sentence imposed remain undisturbed; this order affects only the date from which the sentence is to be computed;
(d) Each party shall bear its own costs of the Application.
It is so ordered.
Delivered at Kericho this 27th day of July 2026.
In the presence of: -
Ms. Loice Osoro for the State.
Geoffrey Kiplangat Kirui — Applicant, in person.
C/A: Irene Chelangat.
1. The Applicant, Geoffrey Kiplangat Kirui, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. After full trial, he was convicted and, on 2nd October 2025, sentenced to 10 years' imprisonment. By an Application dated 23rd March 2026, brought pursuant to Section 333(2) of the Criminal Procedure Code, the Applicant now seeks an order that this Court review his sentence to take into account the period he spent in custody prior to sentencing. He is clear, both in his Application and before this Court, that he does not appeal the conviction or the length of the sentence itself; his sole complaint is that the period he spent on remand was not factored into the computation of the sentence imposed.
2. The Applicant contends that although he remained in custody for the entire period between his arraignment and the delivery of the sentencing ruling, that period was not taken into account when the sentence of 10 years was imposed. He accordingly prays that this Court review the sentence in accordance with Section 333(2) of the Criminal Procedure Code, so that the time already spent in custody is properly credited.
3. Section 333(2) of the Criminal Procedure Code, and the proviso thereto, provide as follows:
“Subject to the provisions of section 38 of the Penal Code, every sentence shall be deemed to commence from, and to include, the whole of the day on which it was pronounced, unless the court otherwise directs:
Provided that where the person sentenced has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
4. The prosecution opposed the Application on the ground that the sentencing court had already factored the remand period into the sentence imposed. It was pointed out that paragraphs 16 and 17 of the Sentencing Ruling recorded that the sentencing judge had considered the time the Applicant spent in custody, noting in particular that he had not been released on bond pending trial. On that basis, the prosecution submitted that the sentence ought not to be disturbed.
B. ANALYSIS AND DETERMINATION
5. The import of the proviso to Section 333(2) is that where an accused person has been held in custody prior to sentence, the sentencing court is obliged to take that period into account in arriving at the appropriate sentence. The provision does not necessarily require an arithmetical deduction of the remand period from the sentence pronounced; what it does require is that the record demonstrate that the court applied its mind to the period spent on remand, and gave it real, practical effect in fixing the sentence, rather than a passing or formulaic acknowledgment that custody occurred.
6. I have carefully perused the proceedings and the sentencing remarks of the trial court. The Applicant was arraigned in court on 11th November 2023 and remanded shortly thereafter, remaining in custody throughout the pendency of the trial until 2nd October 2025, when the sentencing ruling was delivered. That is a continuous period in custody of approximately one (1) year and ten (10) months, which by operation of the proviso to Section 333(2) the trial court was obliged to take into account in fixing the sentence.
7. Turning to the Sentencing Ruling itself, I note that at paragraphs 16 and 17 the trial court did advert to the fact that the Applicant had been in custody throughout the trial and had not been released on bond. What the Sentencing Ruling did not do, however, is state, whether expressly or by necessary implication, what practical effect that period of custody was to have on the 10-year term imposed: there is no direction that the sentence commence otherwise than from the date it was pronounced, no arithmetical reduction referable to the remand period, and no indication that the term of 10 years was itself arrived at, in whole or in part, on account of time already served. A bare recital that an accused was in custody during trial, without more, does not by itself satisfy the proviso; the record must show that the custody period was given weight in fixing the sentence actually imposed.
8. This construction of Section 333(2) is consistent with the guidance of the Court of Appeal in Bethwel Wilson Kibor v Republic, Criminal Appeal No. 78 of 2009, [2009] KECA 143 (KLR), where the trial judge's failure to specifically state that he had taken into account the period the appellant had spent in custody was treated as an error going to the propriety of the sentence, notwithstanding that the fact of custody was otherwise known to the court. The principle was developed further by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic, Criminal Appeal No. 135 of 2016, [2018] eKLR, where the Court held that “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,” and that “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 conviction, because that amounts to ignoring altogether the period already spent in custody.” Applying that reasoning here, the mere observation in paragraphs 16 and 17 of the Sentencing Ruling that the Applicant had been in custody and was not on bond, without any consequential adjustment to the sentence or its commencement date, falls short of what Section 333(2) requires, for precisely the reason identified in Abolfathi Mohammed: it amounts, in substance, to acknowledging the remand period while nonetheless ignoring it in fixing the sentence actually served.
9. I do not accept the prosecution's submission that the reference to custody in the Sentencing Ruling, without more, is sufficient compliance with Section 333(2). To hold otherwise would reduce the proviso to a matter of form rather than substance, permitting a sentencing court to note the fact of remand and then disregard it entirely in fixing the term to be served — an outcome the Court of Appeal in both Kibor and Abolfathi Mohammed was at pains to guard against. The appropriate and least disruptive means of giving the proviso practical effect in this case, where the sentence of 10 years is not itself under challenge, is to direct that the term be computed as running from the date the Applicant was first taken into custody, rather than from the date sentence was pronounced.
C. DISPOSITION
10. For the foregoing reasons, I find and hold as follows:
(a) The Application dated 23rd March 2026 is allowed to the extent set out below;
(b) The sentence of 10 years' imprisonment imposed on 2nd October 2025 shall be computed as running from 11th November 2023, being the date the Applicant was first taken into custody, in compliance with Section 333(2) of the Criminal Procedure Code;
(c) For the avoidance of doubt, the conviction and the length of the sentence imposed remain undisturbed; this order affects only the date from which the sentence is to be computed;
(d) Each party shall bear its own costs of the Application.
It is so ordered.
Delivered at Kericho this 27th day of July 2026.
In the presence of: -
Ms. Loice Osoro for the State.
Geoffrey Kiplangat Kirui — Applicant, in person.
C/A: Irene Chelangat.