Coram: Justice R. Nyakundi
Mr. Leina for State
RULING
INTRODUCTION
1. The Applicant herein was charged with another not before this Court
with the offence of robbery with violence contrary to Section 296(2) of
the Penal Code. He was convicted and sentenced to twenty (20) years
imprisonment.
2. Being aggrieved by the said decision, he lodged an appeal before this
Court in HCCRA No E006 of 2022. In its decision of 20th December
2023, this Court dismissed his appeal and upheld his conviction and
sentence.
3. On 6th March 2026, he filed the Notice of Motion application dated 20th
February 2026 herein seeking an order that the period he spent in
remand be considered as part of his sentence.
4. He pointed out that his sentence was made to run from the date of its
pronouncement rather than from the date of his arrest.
5. He placed reliance on Section 333(2) of the Criminal Procedure Code,
Paragraph 5.1.21 of the Sentencing Policy Guidelines Revised 2023 and
the case of Ahamad Abolfathi Mohammed & Another vs Republic
[2018] eKLR.
6. None of the parties filed any Written Submissions. This Ruling is based
on the Applicant’s affidavit evidence only.
Determination
7. Recent jurisprudence in Kenya regarding the grant of credit for remand
HCCR MISC APPL NO E014 OF 2026 2
custody commonly referred to as pretrial detention establishes that the
Criminal Procedure Code mandates Judges and Magistrates to exercise
discretion to grant credit for the period spent in custody before the
hearing and determination of the criminal proceedings. The letter and
spirit of these provisions on remand credit is to appreciate the
constitutional imperative that every Accused person is presumed
innocent until the contrary is proved by the Prosecution in a criminal
trial. The purpose of remand credit is to ensure that the Accused is
punished under the guise of having committed an offence which is yet
to the prosecuted and proved beyond reasonable doubt.
8. In this regard, Section 333(2) of the Criminal Procedure Code Cap 75
(Laws of Kenya) provides that:-
“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” (emphasis mine).
9. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy
Guidelines provides that:-
“The Sentencing Court shall be guided by the sentencing principles
and objectives set out in Part I of these the Guidelines in all
resentencing hearings. The following mitigating factors were set
out by the Supreme Court as particularly relevant in a resentencing
hearing:…
Time already spent in prison by the convict…”
10.The requirement under Section 333(2) of the Criminal Procedure
Code was restated by the Court of Appeal in Ahamad Abolfathi
Mohammed & Another vs Republic (Supra).
11.Notably, a perusal of the Trial Court’s Sentence indicated that the
Court took into account the period the Applicant spent in remand
during trial. The Trial Court rendered itself as follows:-
HCCR MISC APPL NO E014 OF 2026 3
“In the circumstances of this case, I hereby sentence each of the
accused persons to twenty (20) years imprisonment to run from
the date of this sentence. The said sentence will however, be
inclusive of the period from 18th May 2023 to 20th November 2025
when the accused persons have been in custody.”
12.In view of the above findings the application before this Court is now
res judicata in consonant with its elements which are clearly
crystalized in the realm of civil law under Section 7 of the Civil
Procedure Act which states as follows:
"No court shall, try, any suit or issue in which the matter directly
and substantially in issue has been directly and substantially in
issue in a former suit between the same parties, or between parties
under whom they or any of them claim, litigating under the same
title in a court competent to try such subsequent suit or issue in
which such issue has been subsequently raised, and has been
heard and finally decided by such court.”
[57] The Civil Procedure Act has also provided explanations with
respect to the application of the res judicata rule. Explanation 1-6
are in the following terms: Explanation (1) —The expression
“former suit” means a suit which has been decided before the suit
in question whether or not it was instituted before it.
Explanation (2) —For the purposes of this section, the competence
of a court shall be determined irrespective of any provision as to
right of appeal from the decision of that court. Explanation (3) —
The matter above referred to must in the former suit have been
alleged by one party and either denied or admitted, expressly or
impliedly, by the other. Explanation (4) — Any matter which might
and ought to have been made ground of defence or attack in such
former suit shall be deemed to have been a matter directly and
substantially in issue in such suit. Explanation (5) — Any relief
claimed in a suit, which is not expressly granted by the decree
shall, for the purposes of this section, be deemed to have been
HCCR MISC APPL NO E014 OF 2026 4
refused. Explanation (6) — Where persons litigate bona fide in
respect of a public right or of a private right claimed in common for
themselves and others, all persons interested in such right shall,
for the purposes of this section, be deemed to claim under the
persons so litigating.
[58] This Court in the case of Kenya Commercial Bank Limited v.
Muiri Coffee Estate Limited & another Motion No. 42 of 2014 [2016]
eKLR (Muiri Coffee case) held as follows regarding the doctrine of
res judicata: “[52] Res judicata is a doctrine of substantive law, its
essence being that once the legal rights of parties have been
judicially determined, such edict stands as a conclusive statement
as to those rights. It would appear that the doctrine of res judicata
is to apply in respect of matters of all categories, including issues
of constitutional rights. Such a perception has a basis in
comparative jurisprudence; in the Ugandan case of Hon. Norbert
Mao v. Attorney-General, Constitutional Petition No. 9 of 2002;
[2003] UGCC3, the petitioner brought an action on behalf of 21
persons from his constituency, for declarations under Article 137
of the Uganda Constitution, and for redress under Article 50 of that
Constitution. The matter arose from an incident in which officers of
the Uganda Peoples Defence Forces attacked a prison, and
abducted 20 prisoners, killing one of them. Unknown to the
petitioner, another action had already been filed under Article 50,
seeking similar relief; and Judgment had been given in Hon.
Ronald Reagan Okumu v. Attorney-General, Misc. Application
No.0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The
Constitutional Court dismissed the petition, on a plea of res
judicata, declining the petitioner’s pleas that certain important
constitutional declarations now sought, had not been
accommodated in the earlier Judgment. [53] In Silas Make Otuke
v. Attorney-General & 3 Others, [2014] eKLR, the High Court of
Kenya agreed with the Privy Council decision in Thomas v. The AG
HCCR MISC APPL NO E014 OF 2026 5
of Trinidad and Tobago (1991) LRC (Const.) 1001, in which the
Board was “satisfied that the existence of a constitutional remedy
as that upon which the appellant relies does not affect the
application of the principle of res judicata”. [54] The doctrine of res
judicata, in effect, allows a litigant only one bite at the cherry. It
prevents a litigant, or persons claiming under the same title, from
returning to Court to claim further reliefs not claimed in the earlier
action. It is a doctrine that serves the cause of order and efficacy
in the adjudication process. The doctrine prevents a multiplicity of
suits, which would ordinarily clog the Courts, apart from
occasioning unnecessary costs to the parties; and it ensures that
litigation comes to an end, and the verdict duly translates into fruit
for one party, and liability for another party, conclusively.
13.In view of the decision by the learned Magistrate who convicted and
sentenced the Applicant on 20th November 2025 to a period of 20 years
imprisonment with a rider that the period spent in remand custody be
computed and discounted from the total quantum of sentence any
re-litigation on the same subject matter is res judicata.
DISPOSITION
14.Accordingly, the upshot of this Court’s decision was that the
Applicant’s Notice of Motion application dated 20th February 2026 and
filed on 6th March 2026 was not merited and the same be and is hereby
dismissed.
15.Orders accordingly.
DATED AND DELIVERED SIGNED AT VIHIGA THIS 30TH DAY OF
APRIL 2026
Mr. Leina for State
RULING
INTRODUCTION
1. The Applicant herein was charged with another not before this Court
with the offence of robbery with violence contrary to Section 296(2) of
the Penal Code. He was convicted and sentenced to twenty (20) years
imprisonment.
2. Being aggrieved by the said decision, he lodged an appeal before this
Court in HCCRA No E006 of 2022. In its decision of 20th December
2023, this Court dismissed his appeal and upheld his conviction and
sentence.
3. On 6th March 2026, he filed the Notice of Motion application dated 20th
February 2026 herein seeking an order that the period he spent in
remand be considered as part of his sentence.
4. He pointed out that his sentence was made to run from the date of its
pronouncement rather than from the date of his arrest.
5. He placed reliance on Section 333(2) of the Criminal Procedure Code,
Paragraph 5.1.21 of the Sentencing Policy Guidelines Revised 2023 and
the case of Ahamad Abolfathi Mohammed & Another vs Republic
[2018] eKLR.
6. None of the parties filed any Written Submissions. This Ruling is based
on the Applicant’s affidavit evidence only.
Determination
7. Recent jurisprudence in Kenya regarding the grant of credit for remand
HCCR MISC APPL NO E014 OF 2026 2
custody commonly referred to as pretrial detention establishes that the
Criminal Procedure Code mandates Judges and Magistrates to exercise
discretion to grant credit for the period spent in custody before the
hearing and determination of the criminal proceedings. The letter and
spirit of these provisions on remand credit is to appreciate the
constitutional imperative that every Accused person is presumed
innocent until the contrary is proved by the Prosecution in a criminal
trial. The purpose of remand credit is to ensure that the Accused is
punished under the guise of having committed an offence which is yet
to the prosecuted and proved beyond reasonable doubt.
8. In this regard, Section 333(2) of the Criminal Procedure Code Cap 75
(Laws of Kenya) provides that:-
“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” (emphasis mine).
9. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy
Guidelines provides that:-
“The Sentencing Court shall be guided by the sentencing principles
and objectives set out in Part I of these the Guidelines in all
resentencing hearings. The following mitigating factors were set
out by the Supreme Court as particularly relevant in a resentencing
hearing:…
Time already spent in prison by the convict…”
10.The requirement under Section 333(2) of the Criminal Procedure
Code was restated by the Court of Appeal in Ahamad Abolfathi
Mohammed & Another vs Republic (Supra).
11.Notably, a perusal of the Trial Court’s Sentence indicated that the
Court took into account the period the Applicant spent in remand
during trial. The Trial Court rendered itself as follows:-
HCCR MISC APPL NO E014 OF 2026 3
“In the circumstances of this case, I hereby sentence each of the
accused persons to twenty (20) years imprisonment to run from
the date of this sentence. The said sentence will however, be
inclusive of the period from 18th May 2023 to 20th November 2025
when the accused persons have been in custody.”
12.In view of the above findings the application before this Court is now
res judicata in consonant with its elements which are clearly
crystalized in the realm of civil law under Section 7 of the Civil
Procedure Act which states as follows:
"No court shall, try, any suit or issue in which the matter directly
and substantially in issue has been directly and substantially in
issue in a former suit between the same parties, or between parties
under whom they or any of them claim, litigating under the same
title in a court competent to try such subsequent suit or issue in
which such issue has been subsequently raised, and has been
heard and finally decided by such court.”
[57] The Civil Procedure Act has also provided explanations with
respect to the application of the res judicata rule. Explanation 1-6
are in the following terms: Explanation (1) —The expression
“former suit” means a suit which has been decided before the suit
in question whether or not it was instituted before it.
Explanation (2) —For the purposes of this section, the competence
of a court shall be determined irrespective of any provision as to
right of appeal from the decision of that court. Explanation (3) —
The matter above referred to must in the former suit have been
alleged by one party and either denied or admitted, expressly or
impliedly, by the other. Explanation (4) — Any matter which might
and ought to have been made ground of defence or attack in such
former suit shall be deemed to have been a matter directly and
substantially in issue in such suit. Explanation (5) — Any relief
claimed in a suit, which is not expressly granted by the decree
shall, for the purposes of this section, be deemed to have been
HCCR MISC APPL NO E014 OF 2026 4
refused. Explanation (6) — Where persons litigate bona fide in
respect of a public right or of a private right claimed in common for
themselves and others, all persons interested in such right shall,
for the purposes of this section, be deemed to claim under the
persons so litigating.
[58] This Court in the case of Kenya Commercial Bank Limited v.
Muiri Coffee Estate Limited & another Motion No. 42 of 2014 [2016]
eKLR (Muiri Coffee case) held as follows regarding the doctrine of
res judicata: “[52] Res judicata is a doctrine of substantive law, its
essence being that once the legal rights of parties have been
judicially determined, such edict stands as a conclusive statement
as to those rights. It would appear that the doctrine of res judicata
is to apply in respect of matters of all categories, including issues
of constitutional rights. Such a perception has a basis in
comparative jurisprudence; in the Ugandan case of Hon. Norbert
Mao v. Attorney-General, Constitutional Petition No. 9 of 2002;
[2003] UGCC3, the petitioner brought an action on behalf of 21
persons from his constituency, for declarations under Article 137
of the Uganda Constitution, and for redress under Article 50 of that
Constitution. The matter arose from an incident in which officers of
the Uganda Peoples Defence Forces attacked a prison, and
abducted 20 prisoners, killing one of them. Unknown to the
petitioner, another action had already been filed under Article 50,
seeking similar relief; and Judgment had been given in Hon.
Ronald Reagan Okumu v. Attorney-General, Misc. Application
No.0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The
Constitutional Court dismissed the petition, on a plea of res
judicata, declining the petitioner’s pleas that certain important
constitutional declarations now sought, had not been
accommodated in the earlier Judgment. [53] In Silas Make Otuke
v. Attorney-General & 3 Others, [2014] eKLR, the High Court of
Kenya agreed with the Privy Council decision in Thomas v. The AG
HCCR MISC APPL NO E014 OF 2026 5
of Trinidad and Tobago (1991) LRC (Const.) 1001, in which the
Board was “satisfied that the existence of a constitutional remedy
as that upon which the appellant relies does not affect the
application of the principle of res judicata”. [54] The doctrine of res
judicata, in effect, allows a litigant only one bite at the cherry. It
prevents a litigant, or persons claiming under the same title, from
returning to Court to claim further reliefs not claimed in the earlier
action. It is a doctrine that serves the cause of order and efficacy
in the adjudication process. The doctrine prevents a multiplicity of
suits, which would ordinarily clog the Courts, apart from
occasioning unnecessary costs to the parties; and it ensures that
litigation comes to an end, and the verdict duly translates into fruit
for one party, and liability for another party, conclusively.
13.In view of the decision by the learned Magistrate who convicted and
sentenced the Applicant on 20th November 2025 to a period of 20 years
imprisonment with a rider that the period spent in remand custody be
computed and discounted from the total quantum of sentence any
re-litigation on the same subject matter is res judicata.
DISPOSITION
14.Accordingly, the upshot of this Court’s decision was that the
Applicant’s Notice of Motion application dated 20th February 2026 and
filed on 6th March 2026 was not merited and the same be and is hereby
dismissed.
15.Orders accordingly.
DATED AND DELIVERED SIGNED AT VIHIGA THIS 30TH DAY OF
APRIL 2026