REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMABAY
MISC CRIMINAL APPLICATION No. E133 OF 2025
POLYCARP MBOYA OTIENO. …………………………................................ APPLICANT
VERSUS
REPUBLIC ………………………..……………………………………………. RESPONDENT
(Arising from the original conviction and sentence Homabay, HCCRC NO. 49 of 2014 and the subsequent decision CACRA No. 74 of 2019)
RULING
1. Before the court is an application made in the above-mentioned case seeking the enforcement of section 333(2) the criminal procedure code. The Applicant was initially charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
2. The particulars of the offence stated to be that on the 9th day of July 2014 at Kogweno Oriang’Location, in Rachuonyo North District, within Homabay County, the Applicant murdered Joseph Geofry Ouko Gaya.
3. Following full trial, the court found that the prosecution to had proved its case beyond reasonable doubt. In its judgement delivered on 23 rd January 2019, the court found the Appellant guilty of the preferred charges, convicted him and consequently sentenced him to serve a fifteen (15) years imprisonment.
4. He was aggrieved and appealed to the court of Appeal in Ksm CACRA No. 74 of 2019 but the appeal was dismissed in its entirety for want of merits.
5. By way of an undated Notice of Motion annexed to a document titled Application for Review of Sentence, the applicant has approached the court and seeks the court’s intervention in enforcing the mandatory requirement that the time spent in remand custody be considered by the court for purposes of proportionately reducing the final sentence.
6. The Applicant contends that during the protracted trial period from his initial arrest on 22 nd December 2014 to his conviction and sentence on 23 rd January 2019 , he remained in incarceration and that such period was not accounted for and taken into consideration by the trial court.
7. The application was never opposed by the Respondent who instead concedes and urges the court to comply with the law and take into account the period spent by the Applicant in custody.
Determination
8. Section 333(2) of the Criminal Procedure Code, as interpreted and applied by the superior courts in Kenya, mandates that every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, provided that where the person so sentenced has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody so as to proportionately reduce such ultimate sentence.
9. In the leading decision in Ahamad Abolfathi Mohammed M Another vs Republic (2018) eKLR , the Court of Appeal interpreted the law and gave its import in the following words: -
“…The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code . 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 . Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody.
“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 and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person...”
10. In the instance matter, the record reveals the Applicant was arraigned on 22 nd December 2014. He pleaded not guilty of the charges was granted bond of Kshs 800, 000 with two sureties in the like sum and the record further reveals that the two sureties were approved on the 13.2.2015 and applicant ordered released from custody. By the time of such released he had spent a period the court calculates to aggregate 51 days.
11. In the sentence, the court never expressed the commencement date nor did it allude to the time evidently spent in custody pending trial. That was not in compliance with the law and this court when appropriately moved, like it has, has no option but to correct the error by making the sentence compliant .
12. In doing so, the court must never be seen to invoke its jurisdiction under sections 362 and 364 of the Code. No. the court invokes its inherent nature and power to administer justice and avoid injustice and unequal treatment before the law as a way of seeking to have the law applied evenly and fairly, devoid of undue technicalities
13. Accordingly, the court finds that the application is meritorious and direct that in computing the term to be served by the applicant, the prison authorities shall have the sentence reduced by a period of 51 days, being the period, the applicant spent in custody before being released on bond.
14. It so ordered. Let the court file be closed.
Dated, signed and delivered virtually this 14 th day of April 2026.
Patrick J O Otieno
Judge
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IN THE HIGH COURT AT HOMABAY
MISC CRIMINAL APPLICATION No. E133 OF 2025
POLYCARP MBOYA OTIENO. …………………………................................ APPLICANT
VERSUS
REPUBLIC ………………………..……………………………………………. RESPONDENT
(Arising from the original conviction and sentence Homabay, HCCRC NO. 49 of 2014 and the subsequent decision CACRA No. 74 of 2019)
RULING
1. Before the court is an application made in the above-mentioned case seeking the enforcement of section 333(2) the criminal procedure code. The Applicant was initially charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
2. The particulars of the offence stated to be that on the 9th day of July 2014 at Kogweno Oriang’Location, in Rachuonyo North District, within Homabay County, the Applicant murdered Joseph Geofry Ouko Gaya.
3. Following full trial, the court found that the prosecution to had proved its case beyond reasonable doubt. In its judgement delivered on 23 rd January 2019, the court found the Appellant guilty of the preferred charges, convicted him and consequently sentenced him to serve a fifteen (15) years imprisonment.
4. He was aggrieved and appealed to the court of Appeal in Ksm CACRA No. 74 of 2019 but the appeal was dismissed in its entirety for want of merits.
5. By way of an undated Notice of Motion annexed to a document titled Application for Review of Sentence, the applicant has approached the court and seeks the court’s intervention in enforcing the mandatory requirement that the time spent in remand custody be considered by the court for purposes of proportionately reducing the final sentence.
6. The Applicant contends that during the protracted trial period from his initial arrest on 22 nd December 2014 to his conviction and sentence on 23 rd January 2019 , he remained in incarceration and that such period was not accounted for and taken into consideration by the trial court.
7. The application was never opposed by the Respondent who instead concedes and urges the court to comply with the law and take into account the period spent by the Applicant in custody.
Determination
8. Section 333(2) of the Criminal Procedure Code, as interpreted and applied by the superior courts in Kenya, mandates that every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, provided that where the person so sentenced has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody so as to proportionately reduce such ultimate sentence.
9. In the leading decision in Ahamad Abolfathi Mohammed M Another vs Republic (2018) eKLR , the Court of Appeal interpreted the law and gave its import in the following words: -
“…The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code . 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 . Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody.
“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 and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person...”
10. In the instance matter, the record reveals the Applicant was arraigned on 22 nd December 2014. He pleaded not guilty of the charges was granted bond of Kshs 800, 000 with two sureties in the like sum and the record further reveals that the two sureties were approved on the 13.2.2015 and applicant ordered released from custody. By the time of such released he had spent a period the court calculates to aggregate 51 days.
11. In the sentence, the court never expressed the commencement date nor did it allude to the time evidently spent in custody pending trial. That was not in compliance with the law and this court when appropriately moved, like it has, has no option but to correct the error by making the sentence compliant .
12. In doing so, the court must never be seen to invoke its jurisdiction under sections 362 and 364 of the Code. No. the court invokes its inherent nature and power to administer justice and avoid injustice and unequal treatment before the law as a way of seeking to have the law applied evenly and fairly, devoid of undue technicalities
13. Accordingly, the court finds that the application is meritorious and direct that in computing the term to be served by the applicant, the prison authorities shall have the sentence reduced by a period of 51 days, being the period, the applicant spent in custody before being released on bond.
14. It so ordered. Let the court file be closed.
Dated, signed and delivered virtually this 14 th day of April 2026.
Patrick J O Otieno
Judge
Page | 3