1. Through an undated Notice of Motion, the Applicant sought for orders thus;
1) Spent.
2) That the honourable court be pleased to note that the time spent in custody was not computed to his sentence and that time spent in remand custody be computed into the Applicant’s sentence.
3) That the Applicant was charged and convicted for the offence of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. 2006 and sentenced to serve 25 years imprisonment.
4) That the Applicant appealed before Nyahururu High Court but the same was dismissed.
5) That the Applicant now comes to this honourable court praying that may the time spent in remand custody be computed into his sentence (Section 333(2).
6) That there be orders to cost for the application herein.
2. The application is supported by the sworn affidavit of the Applicant dated 29 th May, 2025 where he reiterates what was stated in the body of the application.
3. Section 333(2) of the Criminal Procedure Code provides that:
(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.
4. In the case of Bukenya v Uganda (Criminal Appeal No. 17 of 2010) [2012] UGSC 3 (29 January 2013) the Court of Appeal stated that:
“Taking the remand period into account is clearly a mandatory requirement. As observed above, this Court has on many occasions construed this clause to mean in effect that the period which an accused person spends in lawful custody before completion of the trial, should be taken into account specifically along with other relevant factors before the court pronounces the term to be served. The three decisions which we have just cited are among many similar decisions of this Court in which we have emphasized the need to apply Clause (8). It does not mean that taking the remand period into account should be done mathematically such as subtracting that period from the sentence the Court would give. But it must be considered and that consideration must be noted in the judgement”
5. In sentencing the Applicant, the trial court stated thus:
“ I Have considered the offence as well as the penalty as well as the circumstances. I hereby sentence the accused to 25 years imprisonment”
6. However, the Appellant states that he appealed to the High Court, Nyahururu, and the appeal was dismissed.
7. This is a matter that was determined by the High Court which calls into play the principle of finality or functus officio. This court (High court) having finally exercised its authority in the case and determined the appeal; it would have no jurisdiction to re-open the case with a view of determining the application.
8. The doctrine of “ functus officio ” was clearly stated in Telcom Kenya Ltd v John Ochanda (2014) eKLR. The court delivered itself thus;
“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered a final decision.”
9. The upshot of the above is that I have no power to grant orders sought. Accordingly, the application is dismissed.
It is so ordered.
HCCR REV. E066 OF 2025 (RUL.) Page 2 of 2
1) Spent.
2) That the honourable court be pleased to note that the time spent in custody was not computed to his sentence and that time spent in remand custody be computed into the Applicant’s sentence.
3) That the Applicant was charged and convicted for the offence of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. 2006 and sentenced to serve 25 years imprisonment.
4) That the Applicant appealed before Nyahururu High Court but the same was dismissed.
5) That the Applicant now comes to this honourable court praying that may the time spent in remand custody be computed into his sentence (Section 333(2).
6) That there be orders to cost for the application herein.
2. The application is supported by the sworn affidavit of the Applicant dated 29 th May, 2025 where he reiterates what was stated in the body of the application.
3. Section 333(2) of the Criminal Procedure Code provides that:
(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.
4. In the case of Bukenya v Uganda (Criminal Appeal No. 17 of 2010) [2012] UGSC 3 (29 January 2013) the Court of Appeal stated that:
“Taking the remand period into account is clearly a mandatory requirement. As observed above, this Court has on many occasions construed this clause to mean in effect that the period which an accused person spends in lawful custody before completion of the trial, should be taken into account specifically along with other relevant factors before the court pronounces the term to be served. The three decisions which we have just cited are among many similar decisions of this Court in which we have emphasized the need to apply Clause (8). It does not mean that taking the remand period into account should be done mathematically such as subtracting that period from the sentence the Court would give. But it must be considered and that consideration must be noted in the judgement”
5. In sentencing the Applicant, the trial court stated thus:
“ I Have considered the offence as well as the penalty as well as the circumstances. I hereby sentence the accused to 25 years imprisonment”
6. However, the Appellant states that he appealed to the High Court, Nyahururu, and the appeal was dismissed.
7. This is a matter that was determined by the High Court which calls into play the principle of finality or functus officio. This court (High court) having finally exercised its authority in the case and determined the appeal; it would have no jurisdiction to re-open the case with a view of determining the application.
8. The doctrine of “ functus officio ” was clearly stated in Telcom Kenya Ltd v John Ochanda (2014) eKLR. The court delivered itself thus;
“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered a final decision.”
9. The upshot of the above is that I have no power to grant orders sought. Accordingly, the application is dismissed.
It is so ordered.
HCCR REV. E066 OF 2025 (RUL.) Page 2 of 2