Preliminaries
1. The Applicant was charged with the offence of defilement contrary to
Section 8(1) as read with Section 8(2) of the Sexual Offences Acts No.
3 of 2006. After a full trial, he was convicted and sentenced to 15
years from the date of conviction.
2. He has now filed an application seeking revision of sentence. He filed
an affidavit in support of his motion. The arguments raised are that the
trial court failed to consider the time he spent in remand custody
during the computation of sentence under the provision of section
333(2) of the Criminal Procedure Code, Cap 75 of the Laws of Kenya.
Analysis and Determination
3. I have considered the application, the affidavit in support and the
applicable law. I have also considered the trial court record. The issue
for consideration is whether the trial court considered the time the
applicant spent in remand custody
4. The proviso to section 333(2) of the Criminal Procedure Code
obligates the court to consider the time already spent in custody during
sentencing. The court has a duty to take into account the period an
accused person had remained in custody during sentencing under the
proviso to section 333(2) of the Criminal Procedure Code which is
couched in mandatory terms. This was acknowledged by the Court of
Appeal in “Ahamad Abolfathi Mohammed & Another – Versus - Republic
[2018] eKLR” and “Bethwel Wilson Kibor – Versus - Republic [2009] eKLR”
and more recently in the High Court case of “Vincent Sila Jona & 87
others – Versus - Kenya Prison Service & 2 others [2021] eKLR”.
5. It is therefore clear that it is mandatory that the period which an
accused has been held in custody prior to being sentenced be
considered in meting out the sentence where it is not hindered by
other provisions of the law.
6. From the record, the Applicant was arrested on 26 th May, 2018. He
was arraigned in court for take plea and was never released on bail
during the entirety of his trial. He was convicted on 22 nd April, 2021.
He, therefore, spent a period of 2 years, 10 months and twenty six
days (2 years, 10 months and 26 days) in remand custody. From the
record, it is clear that the period was not factored in during his
sentencing by the trial court.
7. In “Ahmed Abolfathi Mohamed – Versus - Republic [2018] eKLR” the Court
of Appeal held as follows;
“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 appellant’s sentence of
imprisonment to run from the date of arrest on 19 th June 2012.”
(emphasis mine)
8. Although the trial court, indicated that the said period had been
considered, the court was not specific on what amount of time was
considered. Guided by the law, the court is of the view that the
application ought to be considered, as failure to do so would amount to
denying the applicant a right due to the failure of the court to discharge
an obligation bestowed upon it by law.
Conclusion and Disposition.
9. I thus allow the application. In the premises, I make the following
orders:
i. The sentence of fifteen (15) years imprisonment on each count
shall be computed less by 2 years, 10 months and 26 days and
shall run from the date of conviction.
IT IS SO ORDERED ACORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL,
SIGNED AND DATED AT MOMBASA THIS …….15TH…………DAY OF
…………MAY……………..…….., 2025
……………………………………………………..
In the presence of:
RULING: MISC CRIMINAL APP. NO. E129 OF 2024 Page 5 of 6 HON. W. M. KAGENDO (JUDGE)
M/s. Bebora, Court Assistant;
……………Mr. Ngiri……………State Counsel;
………………………………………….…Applicant
1. The Applicant was charged with the offence of defilement contrary to
Section 8(1) as read with Section 8(2) of the Sexual Offences Acts No.
3 of 2006. After a full trial, he was convicted and sentenced to 15
years from the date of conviction.
2. He has now filed an application seeking revision of sentence. He filed
an affidavit in support of his motion. The arguments raised are that the
trial court failed to consider the time he spent in remand custody
during the computation of sentence under the provision of section
333(2) of the Criminal Procedure Code, Cap 75 of the Laws of Kenya.
Analysis and Determination
3. I have considered the application, the affidavit in support and the
applicable law. I have also considered the trial court record. The issue
for consideration is whether the trial court considered the time the
applicant spent in remand custody
4. The proviso to section 333(2) of the Criminal Procedure Code
obligates the court to consider the time already spent in custody during
sentencing. The court has a duty to take into account the period an
accused person had remained in custody during sentencing under the
proviso to section 333(2) of the Criminal Procedure Code which is
couched in mandatory terms. This was acknowledged by the Court of
Appeal in “Ahamad Abolfathi Mohammed & Another – Versus - Republic
[2018] eKLR” and “Bethwel Wilson Kibor – Versus - Republic [2009] eKLR”
and more recently in the High Court case of “Vincent Sila Jona & 87
others – Versus - Kenya Prison Service & 2 others [2021] eKLR”.
5. It is therefore clear that it is mandatory that the period which an
accused has been held in custody prior to being sentenced be
considered in meting out the sentence where it is not hindered by
other provisions of the law.
6. From the record, the Applicant was arrested on 26 th May, 2018. He
was arraigned in court for take plea and was never released on bail
during the entirety of his trial. He was convicted on 22 nd April, 2021.
He, therefore, spent a period of 2 years, 10 months and twenty six
days (2 years, 10 months and 26 days) in remand custody. From the
record, it is clear that the period was not factored in during his
sentencing by the trial court.
7. In “Ahmed Abolfathi Mohamed – Versus - Republic [2018] eKLR” the Court
of Appeal held as follows;
“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 appellant’s sentence of
imprisonment to run from the date of arrest on 19 th June 2012.”
(emphasis mine)
8. Although the trial court, indicated that the said period had been
considered, the court was not specific on what amount of time was
considered. Guided by the law, the court is of the view that the
application ought to be considered, as failure to do so would amount to
denying the applicant a right due to the failure of the court to discharge
an obligation bestowed upon it by law.
Conclusion and Disposition.
9. I thus allow the application. In the premises, I make the following
orders:
i. The sentence of fifteen (15) years imprisonment on each count
shall be computed less by 2 years, 10 months and 26 days and
shall run from the date of conviction.
IT IS SO ORDERED ACORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL,
SIGNED AND DATED AT MOMBASA THIS …….15TH…………DAY OF
…………MAY……………..…….., 2025
……………………………………………………..
In the presence of:
RULING: MISC CRIMINAL APP. NO. E129 OF 2024 Page 5 of 6 HON. W. M. KAGENDO (JUDGE)
M/s. Bebora, Court Assistant;
……………Mr. Ngiri……………State Counsel;
………………………………………….…Applicant