1. The Notice of Motion dated 17 th October, 2025 is supported by the of the affidavit of the Applicant, RAMADHAN WANJALA LUKOBA sworn on even date. The Application was filed by the Applicant in person. In its grounds, it reiterates the powers of revision conferred upon this Court by Article 165 (6) & (7) of the Constitution, as read together with Section 362-367 of the Criminal Procedure Code, Cap 75. The essence of the Application is that the Applicant is seeking the revision of sentence imposed on him on 25/8/2025 for an offence of stealing contrary to Section 275 of the Penal Code, wherein, he was fined of Kshs. 183, 413/- in default three (3) years imprisonment in Thika Chief Magistrate’s Criminal Case No. E2316 of 2024 .
2. The Respondent informed this Court that on 15/6/2026 that its Replying Affidavit sworn 23 rd March, 2026 and submissions were served upon the Applicant on 24 th March, 2026. However, neither the said affidavit nor the submissions were found in the physical court file or in the court online portal (CTS) when this Court retired to write this Ruling. This Court notified the Respondent through the Court Assistant requesting a resupply and re-upload of the said submissions and the Replying Affidavit but that was not done.
3. As such, the Court proceeded to consider the Application based on the Applicant’s submissions only.
Applicant’s Submissions
4. In the written submissions dated 10 th June, 2026, the Applicant, Ramadhan Wanjala Lukoba , submitted that he was sentenced by the Chief Magistrate's Court (Hon. S. Atambo) at Thika Law Courts in Criminal Case No. E/2316 of 2024 on 25th August 2025 to Three (3) years' imprisonments for the offence of Stealing contrary to Section 268(1) as read with section 275 of the Penal Code.
5. The Applicant submitted that he was arrested on 10 th August 2024 and remanded in custody at Thika Main Prison until the date of his sentencing on 25th August 2025, a period of approximately One year, 2 weeks and 1 day .
6. The Applicant made it clear that he does not contest the conviction. However, he had an issue with the manner the trial court imposed the sentence on him without taking into account the period he had spent in remand custody thereby denying him the benefit of Section 333 (2) of the Criminal Procedure Code as read with Article 50(2)(p) and (q) of the Constitution of Kenya hence pleaded with this Court to have his sentence computed from the date of arrest.
7. The Applicant relied on the case of Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR , in which he stated that the Court of Appeal held thus:
"By dint of section 333(2) of the Criminal Procedure Code, the court is obliged to take into account the period that the accused has spent in custody before sentencing. 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."
8. Further, Musya v Republic [2023] KЕНС 2094 (KLR), where it was held that "Section 333(2) of the Criminal Procedure Code obligates the court to take into account the period spent in custody by the accused person before sentencing..."
9. The Applicant thus prayed the Application dated 17/10/2025 be allowed and orders sought be granted.
Analysis and Determination
10. The Application raises only one core issue for determination, namely:
Whether the Trial Court failed to apply the provisions of Section 333 (2) of the Criminal Procedure Code when it sentenced the Applicant
11. There are no submissions on this issue by the Respondent. However, this is a factual matter that would only require an examination of the trial court record to verify.
12. A perusal of the trial court record reveals the following:
13. The Applicant, according to the charge sheet that was registered in Court on 12/8/2024 was arrested on 10/8/2024. He was arraigned in Court for plea on 12/8/2024 charged with stealing contrary to Section 268(1) as read with Section 275 of the Penal Code. The particulars of the offence read thus:
RAMATHAN WANJALA LUKOBA : On 10 th day August, 2024, at Kiaora Area in Juja Sub-County, within Kiambu County, jointly with another not before the Court, stole money totalling to Kshs. 183,413/-, the property of EPHANTUS MUTHINJI WAWERU.
14. The Applicant initial reaction to the offence was that it was true. Facts were not ready and the Court granted the prosecution request of two days to present the facts. The Applicant was granted a cash bail of Kshs. 100,000/-. There is no release order or evidence that the Applicant raised the cash bail. Facts were read on 14/8/2024. The Applicant denied their accuracy, prompting the Court to enter a plea of not guilty and fixing the matter for hearing on 4/11/2024. The matter did not proceed on 4/11/2024 as the trial magistrate was not sitting on that day. It was fixed for hearing on 17/12/2024 when two witnesses testified. It was then adjourned to 15/5/2025 with a mention date in between of 25.4.25. 15/5/2025, the Court hearing failed to take off because the regular prosecutor was away. The matter was scheduled for hearing on 20/6/2025. The hearing again failed and the matter was allocated another hearing date of 6/8/2025 and a mention date of 11/7/2025. On the said mention date, the Applicant who had been in custody all along requested for the charges to be read afresh. The matter was referred to the trial court for plea on 21/7/2025. Facts were not ready, the court allowed the request by the Prosecution to read the facts on 4/8/2025 and further issued a Production order for the Applicant, which is a confirmation that he was still in custody. Furthermore, it went ahead and acted on the request by the Applicant to reduce the cash bail, it thus revised the cash bail to Kshs. 30,000/-. Despite the reduction, the Applicant did not come out bail. There no proof of payment of the reduced cash bail or release order on record.
15. The next date the Applicant was produced was 8/8/2025, (the record indicates 4/8/2025 when the facts were read and admitted by the Applicant and was convicted on his own plea of guilty. The Court called for a presentence report and on 25.8.2025, it sentenced the Applicant, pronouncing itself on the sentence as follows:
Court:
“Considering the contents of pre-sentence report and the nature of the offence, the accused is sentenced to pay a fine of Kshs. 183,414 in default, 3 years imprisonment.’
16. The proviso to Section 333(2) of the Criminal Procedure Code is an exception to the general rule that every sentence shall be deemed to commence on the date it is pronounced as provided in the main body of section 333(2).
17. Further, it is important to underscore that the proviso to Section 333 (2) of the Criminal procedure Code is not discretionary, it imposes a mandatory obligation on the Court during sentence in the following terms:
“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”
18. The Court therefore does not have the latitude or liberty to overlook the said provision where the accused has been in custody during the trial as it is a statutory command that must be given full effect by the Court.
19. In this case, although the trial court gave the Applicant an option paying the fine, when you consider the default sentence in case of non-payment, you realise that the Court did not take into account the fact that the Applicant had been in custody for more than a year prior to the sentence that was imposed upon him. The offence the Applicant was convicted of an offence carries a maximum sentence of 3 years upon conviction, however, in spelling out the default sentence, the Court applied this maximum period notwithstanding the Applicant had been in custody for more than one year prior to the sentencing . Section 275 of the Penal Code provides:
“Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless, owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.”
20. This in my view is the clearest indication that the Court did not bother to consider giving the Applicant the benefit of the mandatory requirement stipulated by the proviso to Section 333 (2) of the Criminal Procedure Code. The sentence meted was thus excessive and contrary to the requirements of the law.
21. The Application succeeds.
22. Taking into account the Applicant’s pre-sentence custody of over one year, together with the period served since the date of the sentencing on 25/8/2025, and having regard to the maximum sentence prescribed under Section 275 of the Penal Code, I am of the considered view that had the trial court properly applied itself on the mandatory proviso to Section 333 (2) of the Criminal Procedure Code, which benefit the Applicant was entitled to get but was denied, the Applicant would not be in prison custody until now.
23. Consequently, I hereby order that the Applicant be set at liberty forthwith, unless otherwise lawfully held.
Dated, signed and delivered virtually at Thika this 16 th day of July, 2026.
………………………………………….
L N MUGAMBI
JUDGE
HCCR. REV. E079 OF 2025 – RULING 2 | Page
2. The Respondent informed this Court that on 15/6/2026 that its Replying Affidavit sworn 23 rd March, 2026 and submissions were served upon the Applicant on 24 th March, 2026. However, neither the said affidavit nor the submissions were found in the physical court file or in the court online portal (CTS) when this Court retired to write this Ruling. This Court notified the Respondent through the Court Assistant requesting a resupply and re-upload of the said submissions and the Replying Affidavit but that was not done.
3. As such, the Court proceeded to consider the Application based on the Applicant’s submissions only.
Applicant’s Submissions
4. In the written submissions dated 10 th June, 2026, the Applicant, Ramadhan Wanjala Lukoba , submitted that he was sentenced by the Chief Magistrate's Court (Hon. S. Atambo) at Thika Law Courts in Criminal Case No. E/2316 of 2024 on 25th August 2025 to Three (3) years' imprisonments for the offence of Stealing contrary to Section 268(1) as read with section 275 of the Penal Code.
5. The Applicant submitted that he was arrested on 10 th August 2024 and remanded in custody at Thika Main Prison until the date of his sentencing on 25th August 2025, a period of approximately One year, 2 weeks and 1 day .
6. The Applicant made it clear that he does not contest the conviction. However, he had an issue with the manner the trial court imposed the sentence on him without taking into account the period he had spent in remand custody thereby denying him the benefit of Section 333 (2) of the Criminal Procedure Code as read with Article 50(2)(p) and (q) of the Constitution of Kenya hence pleaded with this Court to have his sentence computed from the date of arrest.
7. The Applicant relied on the case of Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR , in which he stated that the Court of Appeal held thus:
"By dint of section 333(2) of the Criminal Procedure Code, the court is obliged to take into account the period that the accused has spent in custody before sentencing. 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."
8. Further, Musya v Republic [2023] KЕНС 2094 (KLR), where it was held that "Section 333(2) of the Criminal Procedure Code obligates the court to take into account the period spent in custody by the accused person before sentencing..."
9. The Applicant thus prayed the Application dated 17/10/2025 be allowed and orders sought be granted.
Analysis and Determination
10. The Application raises only one core issue for determination, namely:
Whether the Trial Court failed to apply the provisions of Section 333 (2) of the Criminal Procedure Code when it sentenced the Applicant
11. There are no submissions on this issue by the Respondent. However, this is a factual matter that would only require an examination of the trial court record to verify.
12. A perusal of the trial court record reveals the following:
13. The Applicant, according to the charge sheet that was registered in Court on 12/8/2024 was arrested on 10/8/2024. He was arraigned in Court for plea on 12/8/2024 charged with stealing contrary to Section 268(1) as read with Section 275 of the Penal Code. The particulars of the offence read thus:
RAMATHAN WANJALA LUKOBA : On 10 th day August, 2024, at Kiaora Area in Juja Sub-County, within Kiambu County, jointly with another not before the Court, stole money totalling to Kshs. 183,413/-, the property of EPHANTUS MUTHINJI WAWERU.
14. The Applicant initial reaction to the offence was that it was true. Facts were not ready and the Court granted the prosecution request of two days to present the facts. The Applicant was granted a cash bail of Kshs. 100,000/-. There is no release order or evidence that the Applicant raised the cash bail. Facts were read on 14/8/2024. The Applicant denied their accuracy, prompting the Court to enter a plea of not guilty and fixing the matter for hearing on 4/11/2024. The matter did not proceed on 4/11/2024 as the trial magistrate was not sitting on that day. It was fixed for hearing on 17/12/2024 when two witnesses testified. It was then adjourned to 15/5/2025 with a mention date in between of 25.4.25. 15/5/2025, the Court hearing failed to take off because the regular prosecutor was away. The matter was scheduled for hearing on 20/6/2025. The hearing again failed and the matter was allocated another hearing date of 6/8/2025 and a mention date of 11/7/2025. On the said mention date, the Applicant who had been in custody all along requested for the charges to be read afresh. The matter was referred to the trial court for plea on 21/7/2025. Facts were not ready, the court allowed the request by the Prosecution to read the facts on 4/8/2025 and further issued a Production order for the Applicant, which is a confirmation that he was still in custody. Furthermore, it went ahead and acted on the request by the Applicant to reduce the cash bail, it thus revised the cash bail to Kshs. 30,000/-. Despite the reduction, the Applicant did not come out bail. There no proof of payment of the reduced cash bail or release order on record.
15. The next date the Applicant was produced was 8/8/2025, (the record indicates 4/8/2025 when the facts were read and admitted by the Applicant and was convicted on his own plea of guilty. The Court called for a presentence report and on 25.8.2025, it sentenced the Applicant, pronouncing itself on the sentence as follows:
Court:
“Considering the contents of pre-sentence report and the nature of the offence, the accused is sentenced to pay a fine of Kshs. 183,414 in default, 3 years imprisonment.’
16. The proviso to Section 333(2) of the Criminal Procedure Code is an exception to the general rule that every sentence shall be deemed to commence on the date it is pronounced as provided in the main body of section 333(2).
17. Further, it is important to underscore that the proviso to Section 333 (2) of the Criminal procedure Code is not discretionary, it imposes a mandatory obligation on the Court during sentence in the following terms:
“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”
18. The Court therefore does not have the latitude or liberty to overlook the said provision where the accused has been in custody during the trial as it is a statutory command that must be given full effect by the Court.
19. In this case, although the trial court gave the Applicant an option paying the fine, when you consider the default sentence in case of non-payment, you realise that the Court did not take into account the fact that the Applicant had been in custody for more than a year prior to the sentence that was imposed upon him. The offence the Applicant was convicted of an offence carries a maximum sentence of 3 years upon conviction, however, in spelling out the default sentence, the Court applied this maximum period notwithstanding the Applicant had been in custody for more than one year prior to the sentencing . Section 275 of the Penal Code provides:
“Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless, owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.”
20. This in my view is the clearest indication that the Court did not bother to consider giving the Applicant the benefit of the mandatory requirement stipulated by the proviso to Section 333 (2) of the Criminal Procedure Code. The sentence meted was thus excessive and contrary to the requirements of the law.
21. The Application succeeds.
22. Taking into account the Applicant’s pre-sentence custody of over one year, together with the period served since the date of the sentencing on 25/8/2025, and having regard to the maximum sentence prescribed under Section 275 of the Penal Code, I am of the considered view that had the trial court properly applied itself on the mandatory proviso to Section 333 (2) of the Criminal Procedure Code, which benefit the Applicant was entitled to get but was denied, the Applicant would not be in prison custody until now.
23. Consequently, I hereby order that the Applicant be set at liberty forthwith, unless otherwise lawfully held.
Dated, signed and delivered virtually at Thika this 16 th day of July, 2026.
………………………………………….
L N MUGAMBI
JUDGE
HCCR. REV. E079 OF 2025 – RULING 2 | Page