The Appellant filed an amended petition of Appeal which was received by this court on 7/10/2021; it was subsequently heard on 23/3/2025. She also filed submissions in support dated 28/3/2025.
The state filed submissions in opposition dated 15/8/2025 and also filed the notice of enhancement of the sentence of similar date when the Appellant appeared before the Deputy Registrar of this court on 24/11/25, she is recorded as having stated as follows:-
Appellant
“I received the notice of enhancement. Having considered the same, I
Wish to abandon the appeal and pray the time spent in custody to be considered.
I filed my submission and indicated so.
The deputy registrar recorded thus:
“Noted, file to be mentioned before Honourable Judge for directions on 9/2/2026.”
Unfortunately, the appellant was not produced on 9/2/2026. Today, the
Appellant has confirmed that indeed, she is only interested in having the number of days she spent in custody being taken to account in the sentence.
She has stated: -
“ Last time, I read the notice, I stated I have accepted my 15 years sentence but I want the court to take into account period I was in custody.”
The prosecutor M/s Koech has observed that the record of the lower court was not explicit that the period the Appellant had spent in custody was, taken into account during sentencing and for that reason has conceded that submission.
Under section 333(2) of the Criminal Procedure Code, it is provided as follows.
(2) Subject to the provisions of Provision 38 of the penal code, 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 otherwise provided by the code"
Provided that where the person sentenced under sub – section (1) has prior to the sentence, been held in custody, the sentence shall take account of period spent in custody.
I have examined the record of lower court. The sentence was passed on 23/10/2019 by Hon. A. M Maina, Senior Principal Magistrate
The sentence reads “ mitigation noted. The offender is sentenced to fifteen (15) years imprisonment. Right of appeal explained.”
Clearly there is no mention of the period that the Appellant had spent in custody despite the record being manifest that she had been in custody all along during the trial.
I thus find the submission that the lower court ignored the provision of section 333(2) of the Criminal Procedure Code Meritorious. I thus order that the sentence of the Appellant be varied to commence from 16/4/2018 when she took plea and not the 23/10/2019 when she was actually sentenced.
Dated, signed and delivered virtually at Thika this 11 th day of May, 2026.
...............................................
L. N. MUGAMBI
JUDGE
HCCRA 78 OF 2023 2 | Page
The state filed submissions in opposition dated 15/8/2025 and also filed the notice of enhancement of the sentence of similar date when the Appellant appeared before the Deputy Registrar of this court on 24/11/25, she is recorded as having stated as follows:-
Appellant
“I received the notice of enhancement. Having considered the same, I
Wish to abandon the appeal and pray the time spent in custody to be considered.
I filed my submission and indicated so.
The deputy registrar recorded thus:
“Noted, file to be mentioned before Honourable Judge for directions on 9/2/2026.”
Unfortunately, the appellant was not produced on 9/2/2026. Today, the
Appellant has confirmed that indeed, she is only interested in having the number of days she spent in custody being taken to account in the sentence.
She has stated: -
“ Last time, I read the notice, I stated I have accepted my 15 years sentence but I want the court to take into account period I was in custody.”
The prosecutor M/s Koech has observed that the record of the lower court was not explicit that the period the Appellant had spent in custody was, taken into account during sentencing and for that reason has conceded that submission.
Under section 333(2) of the Criminal Procedure Code, it is provided as follows.
(2) Subject to the provisions of Provision 38 of the penal code, 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 otherwise provided by the code"
Provided that where the person sentenced under sub – section (1) has prior to the sentence, been held in custody, the sentence shall take account of period spent in custody.
I have examined the record of lower court. The sentence was passed on 23/10/2019 by Hon. A. M Maina, Senior Principal Magistrate
The sentence reads “ mitigation noted. The offender is sentenced to fifteen (15) years imprisonment. Right of appeal explained.”
Clearly there is no mention of the period that the Appellant had spent in custody despite the record being manifest that she had been in custody all along during the trial.
I thus find the submission that the lower court ignored the provision of section 333(2) of the Criminal Procedure Code Meritorious. I thus order that the sentence of the Appellant be varied to commence from 16/4/2018 when she took plea and not the 23/10/2019 when she was actually sentenced.
Dated, signed and delivered virtually at Thika this 11 th day of May, 2026.
...............................................
L. N. MUGAMBI
JUDGE
HCCRA 78 OF 2023 2 | Page