REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL REVISION NO. E006 OF 2025
AUGUSTINE ODWORI MALANGO………………………………………………APPELLANT
VERSUS
REPUBLIC……………………………………………………………………………..RESPONDENT
(Being an application for revision of sentence to take into account time spent in custody during trial arising from the sentence dated 10 th June 2024 by Hon. L. T. Lewa, Principal Magistrate in the Magistrates Court at Kwale Criminal Case No. 780 of 2019)
RULING
1. The applicant Augustine Odwori Malango was convicted of the offence of being in possession of wildlife trophy contrary to section 95 of the Wildlife Conservation and Management Act (Cap. 476) Laws of Kenya. The evidence established that the applicant with another, Nancy Akoth Owino, were found in possession wildlife trophy namely four (4) pieces of elephant tusk weighing 500 grams and one (1) Hippo tooth weighing 500 grams, worth a street value of KShs 100,000/= without a permit. Both were sentenced on 10 th June 2024 to a fine of KShs one million in default to serve five (5) years’ imprisonment.
2. The applicant has filed the application dated 16 th April 2025 seeking an order of review of sentence under article 50(2)(q) of the constitution and section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya to take into account the time spent in custody during the hearing of the case for reasons that the trial court failed to do so at the time of sentencing. He prays further that upon the court taking into account that period, it reviews his sentence for the remaining part of his imprisonment to be non-custodial on grounds that he is of advanced age, now sixty years, illness, loss of his wife and that he had since been rehabilitated and gained some technical skills for the time he has served his sentence in prison.
3. The application is supported by the affidavit sworn on 16 th April 2025 by the applicant. Although the applicant deposes that he was sentenced to five (5) years’ imprisonment, the correct position is that the term of imprisonment is in default of payment of the fine.
4. I have carefully considered the grounds of the application, the supporting affidavit by the applicant and the process of sentencing by the trial court. The issue for this court to determine is whether the application has merit and if so what are the appropriate orders to grant.
5. I have looked at the proceedings of the trial court and I find that it is true that at the time of sentencing the trial court did not pronounce itself on the issue of the time the applicant spent in custody during trial.
6. However, before moving to the issue of sentence, I have noted that there was an error committed by the trial court during the proceedings against the applicant and his co-accused. At the time the accused person was charged, the WCMA had been substantially amended so that section 95 under which he was charged had been amended and was different from what it had previously been. The old section 95 of the WCMA under which the applicant was erroneously charged, convicted and sentenced provided as follows:
S. 95. Any person who keeps or is found in possession of a wildlife trophy or deals in a wildlife trophy, or manufactures any item from a trophy without a permit issued under this Act or exempted in accordance with any other provision of this Act, commits an offence and shall be liable upon conviction to a fine of not less than one million shillings or imprisonment for a term of not less than five years or to both such imprisonment and fine.
7. The amended and therefore correct Section 95(b) of the WCMA, under which the applicant ought to have been charged, convicted and sentenced provides that:
95. Any person who, without a permit or exemption granted under this Act in relation to a species not specified under section 92 —
(a) kills or injures, tortures or molests, or attempts to kill or injure, any wildlife species;
(b) deals in a wildlife trophy;
(c) deals in a live wildlife species;
(d) is in possession of a wildlife trophy or live wildlife species; or
(e) manufactures an item from a wildlife trophy, commits an offence and shall be liable on conviction to a fine of not less than one million shillings or a term of imprisonment of not less than twelve months or to both such fine and imprisonment.
8. The amendments were made through, The Statute Law (Miscellaneous Amendments) Act 2018 No. 18 of 2018 whose date of assent was 31 st December, 2018 and date of commencement, 18 th January 2019. The applicant was arrested on 20 th September 2019 and charged before court on 23 rd September 2019 after the amendments had taken effect. It would appear that the investigating officer who drafted the charges, the learned prosecution counsel who approved and filed the charge sheet and the learned trial magistrate who took plea and proceeded on the charge as presented did not apprise themselves of the recent changes in the law during the trial of the applicant and his co-accused.
9. That error was not fatal to the charge though because the offence and punishment indeed existed under the Act.
10. Even then, there was a further error because even under the Act there ought to have been two counts preferred against the accused persons arising from the fact that there were two different wildlife species, the elephant and the Hippo from which the two different types of trophies, the elephant tusks and the Hippo tooth had been obtained.
11. For the elephant tusks, the correct section of the law under which the charge ought to have been laid is section 92(2) of the WCMA as amended because, an elephant, from which the tusks were obtained, belongs to the “specified endangered species” of wildlife listed under Appendix 6 of the Act. From these classifications, the offence for possession of elephant tusks is created under section 92(2) of the Act which provides that:
(2) A person who, without permit or exemption issued under this Act, deals in a wildlife trophy, of any critically endangered or endangered species as specified in the Sixth Schedule or listed under CITES Appendix I, commits an offence and shall be liable upon conviction to a term of imprisonment of not less than seven years.
12. For the Hippo, from which the tooth was obtained, it belongs to the vulnerable species as listed under the 6 th schedule to the Act, and the charge would have been laid under section 95(b) of the Act, as set out above, if the amended Act had been used.
13. The case would then have proceeded on the two counts as such.However, the case then proceeded under one count as though the applicant had been charged for possession of the Hippo tooth alone.
14. In her judgment, the learned trial magistrate found that the prosecution had proved beyond any reasonable doubt that the applicant and his co-accused had been found with four pieces of ivory (the elephant tusks) and a Hippo tooth and proceeded to convict them accordingly as charged.
15. The applicant therefore got the benefit of that error of being charged, convicted, and eventually sentenced on one count which carried a lesser sentence because, had he been properly charged with two counts, the sentence for possession of the elephant tusks would have been a term of imprisonment of not less than seven years with no option of a fine and in addition the sentence for possession of the Hippo tooth which is a fine of not less than one million shillings or a term of imprisonment of not less than twelve months or to both such fine and imprisonment.
16. However, he was lucky to have been sentenced (under the old section) as if the charge was only for possession of the Hippo tooth.
17. The applicant was then sentenced to pay a fine of KShs One (1) million in default to serve five (5) years’ imprisonment. Here again, the trial court wrongly imposed a default term of five years’ imprisonment because this does not accord with section 28(2) of the Penal Code (Cap. 63) Laws of Kenya which provides as follows:
S. 28(2). In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Repealed) ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale—
Amount Maximum period
Not exceeding Sh. 500 14 days
Exceeding Sh. 500 but not exceeding Sh. 2,500 1 month
Exceeding Sh. 2,500 but not exceeding Sh. 15,000 3 months
Exceeding Sh. 15,000 but not exceeding Sh. 50,000 6 months
Exceeding Sh. 50,000 12 months
(3). The imprisonment or detention which is imposed in default of payment of a fine shall terminate whenever the fine is either paid or levied by process of law.
18. From the foregoing provision, it is apparent that the learned trial magistrate imposed a default sentence beyond what is prescribed by the law. Since the fine was KShs one million the maximum default term is 12 months’ imprisonment which the learned trial magistrate ought to have imposed. (Note that this is not the 12 months’ imprisonment provided for under the section which is not a default term). Therefore, learned trial magistrate was in error to impose a higher default term of imprisonment than provided for under section 28(2) of the Penal Code since there was no default term of imprisonment provided for under the new section 95(b) of the Act and even under the old section 95 of the Act.
19. If, say, the applicant had been charged with possession of the elephant tusks only but under the wrong section 95 of the WMCA, and even where the respondent was not appealing for the enhancement of the sentence as in the present case, this court would have acted under sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya, to correct that error by imposing the correct sentence under section 92 of the WCMA. The sections provide in the relevant parts as follows:
S. 362: The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
S. 364 (1)(a) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354 , 357 and 358 , and may enhance the sentence;
(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:
Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
20. In this case I have found that the applicant ought to have been charged and convicted on two counts. Section 364(1)(a) CPC provides that the High Court may in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354 , 357 and 358 , and may enhance the sentence. Section 354(3)(a)(ii) provides that the court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may in an appeal from a conviction alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence and section 354(3)(d) provides that the court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may in an appeal from any other order, alter or reverse the order, and in any case may make any amendment or any consequential or incidental order that may appear just and proper.
21. If this court was to proceed to correct the errors, it would end up finding the applicant guilty on the two counts and the sentences would be follows:
a. On the count of possession of wildlife trophy of an endangered species under section 92 of the WCMA to a term of seven years’ imprisonment.
b. On the count of possession of wildlife trophy contrary to section 95(d) of the WCMA to a fine of one million shillings in default to serve 12 months’ imprisonment.
22. Since a default term of imprisonment cannot run concurrent to the other term of imprisonment, it would mean in the event he did not pay the fine he would serve a total of eight (8) years’ imprisonment.
23. On that corrected sentence, this court would then consider the time served in remand custody during trial as applied for herein. Section 333(2) CPC under which the appellant files this application 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.
24. Explaining this provision of the law, the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR) , held that:
“The appellants have been in custody from the date of their arrest on 19th June 2012. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced... “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.”
25. The Sentencing Policy Guidelines 2023 provide further elaboration of this provision as follows:
“2.3.18 Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.
2.3.19 Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and courts should make an enquiry particularly with unrepresented offenders – for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.”
26. Accordingly, under Section 333(2) of the Criminal Procedure Code the period served in remand from the date the applicant was arrested on 20 th September 2019 to the date he was released from custody on a personal bond of KShs 100,000/= on 23 rd December 2019, is 95 days which is to be deducted from the term of imprisonment.
27. Since the trial court did not order that this period spent in custody pending trial be taken into account in the sentence of imprisonment for the applicant, it would only be fair and just, that the period would be deducted from the appellant’s sentence of seven (7) years’ imprisonment in line with section 333(2) of the Criminal Procedure Code. An amended committal warrant to that effect would then have been signed by the Deputy Registrar.
28. However, the question then is, what would be just and proper in the circumstances of this case. In my thinking, to correct the error so as to have the applicant sentenced on two counts when he already faced a charge and was convicted on one count will not be just and proper. The justice of the case requires that the correction of sentence be on the single count that the applicant was convicted upon.
29. Accordingly, for the reasons set out above, I find that the application succeeds to the extent of the correction on the default sentence of imprisonment above. Following that, the issue of considering the period served in remand custody falls on the wayside for two reasons. First, he was sentenced to a fine and only in default of payment would the term of imprisonment run. A reading of section 333 as a whole would show that it only applies where the sentence is imprisonment without the option of a fine. Secondly his default term of imprisonment of twelve months is spent.
30. Consequently, the applicant together with his co-accused Nancy Akoth Awino, if they are still in prison custody should be and are hereby released forthwith unless otherwise lawfully held.
31. It is so ordered.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, MicrosoftTeams, this 21 st day of August 2026
This ruling is posted on the Court Case Tracking System for immediate availability of the applicant and a certified hard copy to be provided to the applicant through the Kwale prison authorities.
Vallerie for DPP.
Ummu: Court assistant.
ANDAYI W. FRANCIS
JUDGE
HC Cr. REVISION No. eo06/20251/POSSESSION OF WILDLIFE TROPHY-review of sentence
IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL REVISION NO. E006 OF 2025
AUGUSTINE ODWORI MALANGO………………………………………………APPELLANT
VERSUS
REPUBLIC……………………………………………………………………………..RESPONDENT
(Being an application for revision of sentence to take into account time spent in custody during trial arising from the sentence dated 10 th June 2024 by Hon. L. T. Lewa, Principal Magistrate in the Magistrates Court at Kwale Criminal Case No. 780 of 2019)
RULING
1. The applicant Augustine Odwori Malango was convicted of the offence of being in possession of wildlife trophy contrary to section 95 of the Wildlife Conservation and Management Act (Cap. 476) Laws of Kenya. The evidence established that the applicant with another, Nancy Akoth Owino, were found in possession wildlife trophy namely four (4) pieces of elephant tusk weighing 500 grams and one (1) Hippo tooth weighing 500 grams, worth a street value of KShs 100,000/= without a permit. Both were sentenced on 10 th June 2024 to a fine of KShs one million in default to serve five (5) years’ imprisonment.
2. The applicant has filed the application dated 16 th April 2025 seeking an order of review of sentence under article 50(2)(q) of the constitution and section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya to take into account the time spent in custody during the hearing of the case for reasons that the trial court failed to do so at the time of sentencing. He prays further that upon the court taking into account that period, it reviews his sentence for the remaining part of his imprisonment to be non-custodial on grounds that he is of advanced age, now sixty years, illness, loss of his wife and that he had since been rehabilitated and gained some technical skills for the time he has served his sentence in prison.
3. The application is supported by the affidavit sworn on 16 th April 2025 by the applicant. Although the applicant deposes that he was sentenced to five (5) years’ imprisonment, the correct position is that the term of imprisonment is in default of payment of the fine.
4. I have carefully considered the grounds of the application, the supporting affidavit by the applicant and the process of sentencing by the trial court. The issue for this court to determine is whether the application has merit and if so what are the appropriate orders to grant.
5. I have looked at the proceedings of the trial court and I find that it is true that at the time of sentencing the trial court did not pronounce itself on the issue of the time the applicant spent in custody during trial.
6. However, before moving to the issue of sentence, I have noted that there was an error committed by the trial court during the proceedings against the applicant and his co-accused. At the time the accused person was charged, the WCMA had been substantially amended so that section 95 under which he was charged had been amended and was different from what it had previously been. The old section 95 of the WCMA under which the applicant was erroneously charged, convicted and sentenced provided as follows:
S. 95. Any person who keeps or is found in possession of a wildlife trophy or deals in a wildlife trophy, or manufactures any item from a trophy without a permit issued under this Act or exempted in accordance with any other provision of this Act, commits an offence and shall be liable upon conviction to a fine of not less than one million shillings or imprisonment for a term of not less than five years or to both such imprisonment and fine.
7. The amended and therefore correct Section 95(b) of the WCMA, under which the applicant ought to have been charged, convicted and sentenced provides that:
95. Any person who, without a permit or exemption granted under this Act in relation to a species not specified under section 92 —
(a) kills or injures, tortures or molests, or attempts to kill or injure, any wildlife species;
(b) deals in a wildlife trophy;
(c) deals in a live wildlife species;
(d) is in possession of a wildlife trophy or live wildlife species; or
(e) manufactures an item from a wildlife trophy, commits an offence and shall be liable on conviction to a fine of not less than one million shillings or a term of imprisonment of not less than twelve months or to both such fine and imprisonment.
8. The amendments were made through, The Statute Law (Miscellaneous Amendments) Act 2018 No. 18 of 2018 whose date of assent was 31 st December, 2018 and date of commencement, 18 th January 2019. The applicant was arrested on 20 th September 2019 and charged before court on 23 rd September 2019 after the amendments had taken effect. It would appear that the investigating officer who drafted the charges, the learned prosecution counsel who approved and filed the charge sheet and the learned trial magistrate who took plea and proceeded on the charge as presented did not apprise themselves of the recent changes in the law during the trial of the applicant and his co-accused.
9. That error was not fatal to the charge though because the offence and punishment indeed existed under the Act.
10. Even then, there was a further error because even under the Act there ought to have been two counts preferred against the accused persons arising from the fact that there were two different wildlife species, the elephant and the Hippo from which the two different types of trophies, the elephant tusks and the Hippo tooth had been obtained.
11. For the elephant tusks, the correct section of the law under which the charge ought to have been laid is section 92(2) of the WCMA as amended because, an elephant, from which the tusks were obtained, belongs to the “specified endangered species” of wildlife listed under Appendix 6 of the Act. From these classifications, the offence for possession of elephant tusks is created under section 92(2) of the Act which provides that:
(2) A person who, without permit or exemption issued under this Act, deals in a wildlife trophy, of any critically endangered or endangered species as specified in the Sixth Schedule or listed under CITES Appendix I, commits an offence and shall be liable upon conviction to a term of imprisonment of not less than seven years.
12. For the Hippo, from which the tooth was obtained, it belongs to the vulnerable species as listed under the 6 th schedule to the Act, and the charge would have been laid under section 95(b) of the Act, as set out above, if the amended Act had been used.
13. The case would then have proceeded on the two counts as such.However, the case then proceeded under one count as though the applicant had been charged for possession of the Hippo tooth alone.
14. In her judgment, the learned trial magistrate found that the prosecution had proved beyond any reasonable doubt that the applicant and his co-accused had been found with four pieces of ivory (the elephant tusks) and a Hippo tooth and proceeded to convict them accordingly as charged.
15. The applicant therefore got the benefit of that error of being charged, convicted, and eventually sentenced on one count which carried a lesser sentence because, had he been properly charged with two counts, the sentence for possession of the elephant tusks would have been a term of imprisonment of not less than seven years with no option of a fine and in addition the sentence for possession of the Hippo tooth which is a fine of not less than one million shillings or a term of imprisonment of not less than twelve months or to both such fine and imprisonment.
16. However, he was lucky to have been sentenced (under the old section) as if the charge was only for possession of the Hippo tooth.
17. The applicant was then sentenced to pay a fine of KShs One (1) million in default to serve five (5) years’ imprisonment. Here again, the trial court wrongly imposed a default term of five years’ imprisonment because this does not accord with section 28(2) of the Penal Code (Cap. 63) Laws of Kenya which provides as follows:
S. 28(2). In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Repealed) ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale—
Amount Maximum period
Not exceeding Sh. 500 14 days
Exceeding Sh. 500 but not exceeding Sh. 2,500 1 month
Exceeding Sh. 2,500 but not exceeding Sh. 15,000 3 months
Exceeding Sh. 15,000 but not exceeding Sh. 50,000 6 months
Exceeding Sh. 50,000 12 months
(3). The imprisonment or detention which is imposed in default of payment of a fine shall terminate whenever the fine is either paid or levied by process of law.
18. From the foregoing provision, it is apparent that the learned trial magistrate imposed a default sentence beyond what is prescribed by the law. Since the fine was KShs one million the maximum default term is 12 months’ imprisonment which the learned trial magistrate ought to have imposed. (Note that this is not the 12 months’ imprisonment provided for under the section which is not a default term). Therefore, learned trial magistrate was in error to impose a higher default term of imprisonment than provided for under section 28(2) of the Penal Code since there was no default term of imprisonment provided for under the new section 95(b) of the Act and even under the old section 95 of the Act.
19. If, say, the applicant had been charged with possession of the elephant tusks only but under the wrong section 95 of the WMCA, and even where the respondent was not appealing for the enhancement of the sentence as in the present case, this court would have acted under sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya, to correct that error by imposing the correct sentence under section 92 of the WCMA. The sections provide in the relevant parts as follows:
S. 362: The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
S. 364 (1)(a) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354 , 357 and 358 , and may enhance the sentence;
(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:
Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
20. In this case I have found that the applicant ought to have been charged and convicted on two counts. Section 364(1)(a) CPC provides that the High Court may in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354 , 357 and 358 , and may enhance the sentence. Section 354(3)(a)(ii) provides that the court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may in an appeal from a conviction alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence and section 354(3)(d) provides that the court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may in an appeal from any other order, alter or reverse the order, and in any case may make any amendment or any consequential or incidental order that may appear just and proper.
21. If this court was to proceed to correct the errors, it would end up finding the applicant guilty on the two counts and the sentences would be follows:
a. On the count of possession of wildlife trophy of an endangered species under section 92 of the WCMA to a term of seven years’ imprisonment.
b. On the count of possession of wildlife trophy contrary to section 95(d) of the WCMA to a fine of one million shillings in default to serve 12 months’ imprisonment.
22. Since a default term of imprisonment cannot run concurrent to the other term of imprisonment, it would mean in the event he did not pay the fine he would serve a total of eight (8) years’ imprisonment.
23. On that corrected sentence, this court would then consider the time served in remand custody during trial as applied for herein. Section 333(2) CPC under which the appellant files this application 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.
24. Explaining this provision of the law, the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR) , held that:
“The appellants have been in custody from the date of their arrest on 19th June 2012. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced... “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.”
25. The Sentencing Policy Guidelines 2023 provide further elaboration of this provision as follows:
“2.3.18 Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.
2.3.19 Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and courts should make an enquiry particularly with unrepresented offenders – for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.”
26. Accordingly, under Section 333(2) of the Criminal Procedure Code the period served in remand from the date the applicant was arrested on 20 th September 2019 to the date he was released from custody on a personal bond of KShs 100,000/= on 23 rd December 2019, is 95 days which is to be deducted from the term of imprisonment.
27. Since the trial court did not order that this period spent in custody pending trial be taken into account in the sentence of imprisonment for the applicant, it would only be fair and just, that the period would be deducted from the appellant’s sentence of seven (7) years’ imprisonment in line with section 333(2) of the Criminal Procedure Code. An amended committal warrant to that effect would then have been signed by the Deputy Registrar.
28. However, the question then is, what would be just and proper in the circumstances of this case. In my thinking, to correct the error so as to have the applicant sentenced on two counts when he already faced a charge and was convicted on one count will not be just and proper. The justice of the case requires that the correction of sentence be on the single count that the applicant was convicted upon.
29. Accordingly, for the reasons set out above, I find that the application succeeds to the extent of the correction on the default sentence of imprisonment above. Following that, the issue of considering the period served in remand custody falls on the wayside for two reasons. First, he was sentenced to a fine and only in default of payment would the term of imprisonment run. A reading of section 333 as a whole would show that it only applies where the sentence is imprisonment without the option of a fine. Secondly his default term of imprisonment of twelve months is spent.
30. Consequently, the applicant together with his co-accused Nancy Akoth Awino, if they are still in prison custody should be and are hereby released forthwith unless otherwise lawfully held.
31. It is so ordered.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, MicrosoftTeams, this 21 st day of August 2026
This ruling is posted on the Court Case Tracking System for immediate availability of the applicant and a certified hard copy to be provided to the applicant through the Kwale prison authorities.
Vallerie for DPP.
Ummu: Court assistant.
ANDAYI W. FRANCIS
JUDGE
HC Cr. REVISION No. eo06/20251/POSSESSION OF WILDLIFE TROPHY-review of sentence