1. The Applicant filed Notice of Motion on 7/5/2025 and sought the application of Section 333(2) CPC to computation of his sentence. The Applicant was arraigned for offence of murder in High Court Criminal Case 2 of 2012.He was tried while in custody and was convicted and sentenced to death on 30 th Jan 2017.
2. The Applicant lodged appeal to Court of Appeal on CRA 86 of 2017 where the appeal partially succeeded on sentence and the death penalty was reduced from life imprisonment was commuted to 30 years imprisonment.
3. The Applicant submitted that the Court was/is not functus “officio as the exercise of Section 333(2) CPC is not to reopen the case on conviction and/or alter the judgment but he seeks enforcement of his statutory and constitutional right.
4. The Applicant submitted and relied on Articles 27(1) & (4) Article 28 Article 165 (6) of the Constitution to buttress his claim and point.
5. The Respondent Office of Director of Public Prosecution (ODPP) submitted and relied on Grounds of Opposition; the Application was an abuse of Court’s process; The Applicant was tried convicted and sentenced to death vide HCCR No 2 of 2012 (not availed for perusal to-date) The Applicant moved CoA 86 of 2017 and sentence was reviewed to 30 years imprisonment. In view of the hierarchy of Courts, this Court lacks requisite jurisdiction to attend to the matter.
6. Court of Appeal (Nbi) Sichale Mohammed & Kantai JJA in CoA 86 of 2017 judgment reads in part with regard to computation of sentence;
The Court sets aside the death penalty and substituted thereof with sentence of 30 years imprisonment with effect from 30/1/2017 date of the Appellant’s conviction.
7. The Applicant relied on Section 333(2) CPC & Section 38 of the Penal Code & Ahamad Abolfathi Mohammed & Sayed Mansour Mousavi vs. Republic (Criminal
8. Appeal 135 of 2016) [2018] KECA 743 (KLR) (Crim) (26 January 2018) stated that in accordance with the above section ,
Trial courts are obligated to ensure that the period spent in custody is considered while computing the sentence imposed. The above provision is couched in mandatory terms. Unfortunately, many trial courts never apply it while passing sentence. The appellant was in custody from the date of his arraignment in court on 17th February, 2016 until he was released on bond on 11th July 2016, a period of four months and 24 days. By dint of section 333 (2) of the Criminal Procedure Code, the trial court was obliged to take into account the said period, therefore, the failure to do so was a breach of the said section.
9. See also - Jona & 87 others v Kenya Prison Service & 2 others (Petition15 of 2020) [2021] KEHC 457 (KLR) (18 January 2021) (Judgment)Vincent Sila Jona & 87 others
v Kenya Prison Service & 2 others [2021] eKLR & Ismael Mzee Ismael vs the Hon. AG & Hon. ODPP Petition 399 of 2019 HR& C Division
10. Judiciary Sentencing Policy Guidelines at paragraph 7.10 and 7.11 is to the effect that the proviso to Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial.
11. All these legal and policy enactments including case-law speak to the Trial Court including Pre-Trial detention period in computation of sentence upon conviction. The Trial Court High Court meted out the death penalty. On Appeal; CoA commuted the sentence to 30 years imprisonment and emphasized that it was from date of conviction not arrest.
12. Secondly, despite various Court orders to have the Trial Court file retrieved from the High Court the exercise has been futile. It is not possible to verify and confirm the Pre-Trial detention period.
13. Thirdly, the Trial Court and this Court are of equal similar concurrent and competent jurisdiction to challenge judgment of Trial Court and more-so the CoA Judgment is binding to this Court.
DISPOSITION
14. In the upshot, this Court cannot conduct review of the sentence to ensure compliance with Section 333(2) CPC was/was not complied with in the absence of the Trial Court judgment and this Court lacks requisite jurisdiction to interfere with CoA judgment.
It is so ordered.
IN THE PRESENCE OF :
Isaac Mwangi Muchoki - Applicant
Ms. Kuria for Respondent
Gladys Court - Assistant
HIGH COURT MISC APPLICATION NO E118 OF 2025 NHC 2
2. The Applicant lodged appeal to Court of Appeal on CRA 86 of 2017 where the appeal partially succeeded on sentence and the death penalty was reduced from life imprisonment was commuted to 30 years imprisonment.
3. The Applicant submitted that the Court was/is not functus “officio as the exercise of Section 333(2) CPC is not to reopen the case on conviction and/or alter the judgment but he seeks enforcement of his statutory and constitutional right.
4. The Applicant submitted and relied on Articles 27(1) & (4) Article 28 Article 165 (6) of the Constitution to buttress his claim and point.
5. The Respondent Office of Director of Public Prosecution (ODPP) submitted and relied on Grounds of Opposition; the Application was an abuse of Court’s process; The Applicant was tried convicted and sentenced to death vide HCCR No 2 of 2012 (not availed for perusal to-date) The Applicant moved CoA 86 of 2017 and sentence was reviewed to 30 years imprisonment. In view of the hierarchy of Courts, this Court lacks requisite jurisdiction to attend to the matter.
6. Court of Appeal (Nbi) Sichale Mohammed & Kantai JJA in CoA 86 of 2017 judgment reads in part with regard to computation of sentence;
The Court sets aside the death penalty and substituted thereof with sentence of 30 years imprisonment with effect from 30/1/2017 date of the Appellant’s conviction.
7. The Applicant relied on Section 333(2) CPC & Section 38 of the Penal Code & Ahamad Abolfathi Mohammed & Sayed Mansour Mousavi vs. Republic (Criminal
8. Appeal 135 of 2016) [2018] KECA 743 (KLR) (Crim) (26 January 2018) stated that in accordance with the above section ,
Trial courts are obligated to ensure that the period spent in custody is considered while computing the sentence imposed. The above provision is couched in mandatory terms. Unfortunately, many trial courts never apply it while passing sentence. The appellant was in custody from the date of his arraignment in court on 17th February, 2016 until he was released on bond on 11th July 2016, a period of four months and 24 days. By dint of section 333 (2) of the Criminal Procedure Code, the trial court was obliged to take into account the said period, therefore, the failure to do so was a breach of the said section.
9. See also - Jona & 87 others v Kenya Prison Service & 2 others (Petition15 of 2020) [2021] KEHC 457 (KLR) (18 January 2021) (Judgment)Vincent Sila Jona & 87 others
v Kenya Prison Service & 2 others [2021] eKLR & Ismael Mzee Ismael vs the Hon. AG & Hon. ODPP Petition 399 of 2019 HR& C Division
10. Judiciary Sentencing Policy Guidelines at paragraph 7.10 and 7.11 is to the effect that the proviso to Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial.
11. All these legal and policy enactments including case-law speak to the Trial Court including Pre-Trial detention period in computation of sentence upon conviction. The Trial Court High Court meted out the death penalty. On Appeal; CoA commuted the sentence to 30 years imprisonment and emphasized that it was from date of conviction not arrest.
12. Secondly, despite various Court orders to have the Trial Court file retrieved from the High Court the exercise has been futile. It is not possible to verify and confirm the Pre-Trial detention period.
13. Thirdly, the Trial Court and this Court are of equal similar concurrent and competent jurisdiction to challenge judgment of Trial Court and more-so the CoA Judgment is binding to this Court.
DISPOSITION
14. In the upshot, this Court cannot conduct review of the sentence to ensure compliance with Section 333(2) CPC was/was not complied with in the absence of the Trial Court judgment and this Court lacks requisite jurisdiction to interfere with CoA judgment.
It is so ordered.
IN THE PRESENCE OF :
Isaac Mwangi Muchoki - Applicant
Ms. Kuria for Respondent
Gladys Court - Assistant
HIGH COURT MISC APPLICATION NO E118 OF 2025 NHC 2