1. The Applicant herein, vide the notice of motion dated 13th May, 2024 seeks an order for the review of his sentence, so that the period that he spent in custody awaiting conclusion of his trial is taken into account, in line with Section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya, which provides that:
333(2) 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.
(Underlined emphasis).
2. I have gone through the record of the lower court and note that the Appellant was presented before the trial court for plea on 2nd October, 2014 and was charged with the following counts:
a. Count I: Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006.
b. Alternative Count to Count I: Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 6 of 2006.
c. Giving false information to a person employed in the public service contrary to Section 129(a) of the Penal Code.
3. It is instructive from the record of the trial court that the Applicant remained remanded in custody for the entire period of his trial. He was ultimately convicted on the principal charge in count I and on count II on 8th February, 2018 and sentenced to serve 20 years imprisonment and 1 year imprisonment, respectively. The learned trial Magistrate, Hon. R.S. Kipng’eno ordered that the sentences would run concurrently, effective the date of sentencing.
4. From the record of the trial court, which is before me, the period that the Applicant remained in custody while his trial proceeded was not taken into account by the trial court, as provided for under Section 333(2) of the Criminal Procedure Code, as the trial court did not address itself to that period when imposing the sentences.
5. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR 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. It is not enough for the court to merely state that it has taken into account the period already spent in custody…”.
6. The Judiciary Sentencing Policy Guidelines provides 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. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”
7. From the authority and the text above, the learned trial Magistrate was under the obligation to reduce the sentences proportionately by an equal period with that that the Applicant spent in remand custody. The trial court should therefore have ordered for the sentences to run from 2nd October, 2014.
8. In the result, and considering the foregoing, the Applicant’s application is merited. I allow it and review the sentence only to the extent that the sentences imposed by the trial court shall run from 2nd October, 2014. The committal warrant shall be amended accordingly.
9. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 15th April, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
333(2) 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.
(Underlined emphasis).
2. I have gone through the record of the lower court and note that the Appellant was presented before the trial court for plea on 2nd October, 2014 and was charged with the following counts:
a. Count I: Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006.
b. Alternative Count to Count I: Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 6 of 2006.
c. Giving false information to a person employed in the public service contrary to Section 129(a) of the Penal Code.
3. It is instructive from the record of the trial court that the Applicant remained remanded in custody for the entire period of his trial. He was ultimately convicted on the principal charge in count I and on count II on 8th February, 2018 and sentenced to serve 20 years imprisonment and 1 year imprisonment, respectively. The learned trial Magistrate, Hon. R.S. Kipng’eno ordered that the sentences would run concurrently, effective the date of sentencing.
4. From the record of the trial court, which is before me, the period that the Applicant remained in custody while his trial proceeded was not taken into account by the trial court, as provided for under Section 333(2) of the Criminal Procedure Code, as the trial court did not address itself to that period when imposing the sentences.
5. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR 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. It is not enough for the court to merely state that it has taken into account the period already spent in custody…”.
6. The Judiciary Sentencing Policy Guidelines provides 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. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”
7. From the authority and the text above, the learned trial Magistrate was under the obligation to reduce the sentences proportionately by an equal period with that that the Applicant spent in remand custody. The trial court should therefore have ordered for the sentences to run from 2nd October, 2014.
8. In the result, and considering the foregoing, the Applicant’s application is merited. I allow it and review the sentence only to the extent that the sentences imposed by the trial court shall run from 2nd October, 2014. The committal warrant shall be amended accordingly.
9. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 15th April, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.