1. The applicant was charged with the offence of grievous harm contrary to Section 234 of the Penal Code. He pleaded not guilty. After a full hearing the court convicted him and sentenced him to serve 4 years imprisonment. He did not appeal the conviction and sentence.
2. The applicant has now moved to court seeking consideration of the 4 years spent in custody during trial. He is seeking to invoke section 333(2) of the Criminal Procedure Code and to have his sentence to begin from the date of arrest. The application is supported by an affidavit sworn by the applicant in which he states that; the period spent in custody during the trial period be considered and that his 4 years sentence be backdated and be deemed to have commenced on 6.3.2024.
3. The application was canvassed by way of oral submissions. The applicant argued that sentencing is fundamental aspect of a fair trial and urged the court to apply Section 333(2) CPC by taking into account the time spent in custody since the time of his arrest. He referred to Criminal Case No. E296 of 2024 as the original matter.
4. He further submitted that he is now a reformed person and requested in the alternative, a non-custodial sentence.
5. In response the Respondent opposed the application. It argued that the court in passing the sentence took into consideration the period of spent in custody during the trial period and therefore urged the court to dismiss the application.
6. Upon reviewing the record, I note that the trial court had expressly during sentencing the trial court stated that;
“ In sentencing I have factored in the fact that the accused has been in custody since 6.3.2024. He is sentenced to serve 4 years imprisonment”.
7. I have considered the above observation from the trial court. I note that what the applicant is seeking from this court is that the period of 4 years sentence be deemed to have commenced from the date he was placed in custody on 6.3.2024. It is my finding that this factor is not clearly captured in the final sentence meted to the Applicant by the trial Court.
8. Section 333(2) of the CPC provides as follows;
“ 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 ”.
9. In my view, the above provision of the law commands the trial court to pronounce clearly that the sentence period shall be deemed to have commenced from the date the accused was placed in custody, which in the present case was the 6.3.2024. it is therefore my finding that this was not done in the present case.
10. Consequently, I find merit in the present application and allow the same. The Applicant’s 4-year sentence shall be deemed to have commenced from the date he was placed in custody being 6.3.2024. it is so ordered.
11. File closed.
DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 18 TH DAY OF MAY 2026.
DATED SIGNED and DELIVERED at MACHAKOS this 14 TH DAY of MAY 2025
............................................................................
J.W.W. MONGARE
JUDGE
In the Presence of
1. Applicant present at Yatta GK Prison
2. Mr. Mangare and Ms. Machuma for the State
3. Abdisalan-Court Assistant
2. The applicant has now moved to court seeking consideration of the 4 years spent in custody during trial. He is seeking to invoke section 333(2) of the Criminal Procedure Code and to have his sentence to begin from the date of arrest. The application is supported by an affidavit sworn by the applicant in which he states that; the period spent in custody during the trial period be considered and that his 4 years sentence be backdated and be deemed to have commenced on 6.3.2024.
3. The application was canvassed by way of oral submissions. The applicant argued that sentencing is fundamental aspect of a fair trial and urged the court to apply Section 333(2) CPC by taking into account the time spent in custody since the time of his arrest. He referred to Criminal Case No. E296 of 2024 as the original matter.
4. He further submitted that he is now a reformed person and requested in the alternative, a non-custodial sentence.
5. In response the Respondent opposed the application. It argued that the court in passing the sentence took into consideration the period of spent in custody during the trial period and therefore urged the court to dismiss the application.
6. Upon reviewing the record, I note that the trial court had expressly during sentencing the trial court stated that;
“ In sentencing I have factored in the fact that the accused has been in custody since 6.3.2024. He is sentenced to serve 4 years imprisonment”.
7. I have considered the above observation from the trial court. I note that what the applicant is seeking from this court is that the period of 4 years sentence be deemed to have commenced from the date he was placed in custody on 6.3.2024. It is my finding that this factor is not clearly captured in the final sentence meted to the Applicant by the trial Court.
8. Section 333(2) of the CPC provides as follows;
“ 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 ”.
9. In my view, the above provision of the law commands the trial court to pronounce clearly that the sentence period shall be deemed to have commenced from the date the accused was placed in custody, which in the present case was the 6.3.2024. it is therefore my finding that this was not done in the present case.
10. Consequently, I find merit in the present application and allow the same. The Applicant’s 4-year sentence shall be deemed to have commenced from the date he was placed in custody being 6.3.2024. it is so ordered.
11. File closed.
DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 18 TH DAY OF MAY 2026.
DATED SIGNED and DELIVERED at MACHAKOS this 14 TH DAY of MAY 2025
............................................................................
J.W.W. MONGARE
JUDGE
In the Presence of
1. Applicant present at Yatta GK Prison
2. Mr. Mangare and Ms. Machuma for the State
3. Abdisalan-Court Assistant