*
RULING
(On Consideration of Remand Period in Computation of Sentence)*
A. Introduction
1. Before this Court is the Accused’s application seeking consideration of the period spent in remand custody pursuant to Section 333(2) of the Criminal Procedure Code.
2. The application is not opposed by the Prosecution.
B. Background
3. The record shows that the Accused was first arraigned before the trial court on **3rd March 2021**.
4. He remained in custody throughout the trial and was subsequently convicted on **15th February 2022**, when sentence was imposed.
5. It is apparent from the record that the sentencing court did not expressly indicate whether it had taken into account the period spent in custody prior to conviction as required by law.
-C. The Law
6. Section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya provides:
“Subject to the provisions of Section 38 of the Penal Code, whenever a person is sentenced to imprisonment for an offence, any period which he has spent in custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment.”
7. The provision is couched in mandatory terms. The Court is under a duty to take into account the period spent in remand custody.
8. The Court of Appeal in **Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR** emphasized that failure to comply with Section 333(2) of the Criminal Procedure Code is an error in principle. The Court stated:
> “The second is that the court is obliged to take into account the period already spent in custody. Failure to do so amounts to an error in principle.”
9. The Sentencing Policy Guidelines (2016) at paragraph 7.10 similarly provide that:
> “The court must take into account the time already served in custody if the convicted person had been in custody during the trial.”
10. The purpose of this provision is to ensure that an accused person is not subjected to a longer period of incarceration than that lawfully intended by the sentencing court. It is an aspect of fair trial rights under Article 50 of the Constitution and the right to dignity under Article 28.
- D. Analysis
11. From 3rd March 2021 to 15th February 2022, the Accused was in remand custody for approximately 1 months and 12 days prior to conviction.
12. There is no indication on the record that this period was factored into the sentence imposed.
13. Since the application is unopposed and the law is mandatory, this Court is obligated to give effect to Section 333(2) of the Criminal Procedure Code.
14. The proper approach is not to alter the nature of the sentence imposed but to direct that the sentence shall be deemed to have commenced from the date the Accused was first remanded in custody, unless the record shows otherwise.
E. Orders
15. Accordingly, this Court orders as follows:
a) The period spent in remand custody from 3rd March 2021 to 15th February 2022 shall be taken into account in computing the sentence imposed.
b) The sentence shall therefore be deemed to have commenced on 3rd March 2021
RULING
(On Consideration of Remand Period in Computation of Sentence)*
A. Introduction
1. Before this Court is the Accused’s application seeking consideration of the period spent in remand custody pursuant to Section 333(2) of the Criminal Procedure Code.
2. The application is not opposed by the Prosecution.
B. Background
3. The record shows that the Accused was first arraigned before the trial court on **3rd March 2021**.
4. He remained in custody throughout the trial and was subsequently convicted on **15th February 2022**, when sentence was imposed.
5. It is apparent from the record that the sentencing court did not expressly indicate whether it had taken into account the period spent in custody prior to conviction as required by law.
-C. The Law
6. Section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya provides:
“Subject to the provisions of Section 38 of the Penal Code, whenever a person is sentenced to imprisonment for an offence, any period which he has spent in custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment.”
7. The provision is couched in mandatory terms. The Court is under a duty to take into account the period spent in remand custody.
8. The Court of Appeal in **Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR** emphasized that failure to comply with Section 333(2) of the Criminal Procedure Code is an error in principle. The Court stated:
> “The second is that the court is obliged to take into account the period already spent in custody. Failure to do so amounts to an error in principle.”
9. The Sentencing Policy Guidelines (2016) at paragraph 7.10 similarly provide that:
> “The court must take into account the time already served in custody if the convicted person had been in custody during the trial.”
10. The purpose of this provision is to ensure that an accused person is not subjected to a longer period of incarceration than that lawfully intended by the sentencing court. It is an aspect of fair trial rights under Article 50 of the Constitution and the right to dignity under Article 28.
- D. Analysis
11. From 3rd March 2021 to 15th February 2022, the Accused was in remand custody for approximately 1 months and 12 days prior to conviction.
12. There is no indication on the record that this period was factored into the sentence imposed.
13. Since the application is unopposed and the law is mandatory, this Court is obligated to give effect to Section 333(2) of the Criminal Procedure Code.
14. The proper approach is not to alter the nature of the sentence imposed but to direct that the sentence shall be deemed to have commenced from the date the Accused was first remanded in custody, unless the record shows otherwise.
E. Orders
15. Accordingly, this Court orders as follows:
a) The period spent in remand custody from 3rd March 2021 to 15th February 2022 shall be taken into account in computing the sentence imposed.
b) The sentence shall therefore be deemed to have commenced on 3rd March 2021