RULING
(On Consideration of Remand Period in Computation of Sentence)
A. Introduction
Before this Court is the Applicants application dated 24.7.2025 and application dated 8.12.25 filed on criminal misc application no E104 of 2025 Joseph Madenal Manini vs Republic seeking consideration of the period spent in remand custody pursuant to Section 333(2) of the Criminal Procedure Code
The applications are not opposed by the Prosecution.
B. Background
The record shows that the Applicant was first arraigned before the trial court on 26th September 2014.
He remained in custody throughout the trial and was subsequently convicted and sentenced on 11th December 2018.
There is no indication on record that the trial court expressly stated that it had taken into account the period spent in custody prior to conviction as required by law.
C. The Law
Section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya provides:
“Subject to the provisions of Section 38 of the Penal Code, whenever a person is sentenced to imprisonment for an offence, any period which he has spent in custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment.”
The provision is mandatory. A sentencing court must expressly demonstrate that it has considered the remand period.
In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court of Appeal held:
“The second is that the court is obliged to take into account the period already spent in custody. Failure to do so amounts to an error in principle.”
The Sentencing Policy Guidelines (2016) at paragraph 7.10 reinforce this position and require courts to factor in time spent in custody during trial.
The rationale behind Section 333(2) is to ensure proportionality in sentencing and to prevent an accused person from serving a term longer than that intended by law, consistent with Articles 28 and 50 of the Constitution.
D. Analysis
From 26th September 2014 to 11th December 2018, the Applicant was in remand custody for approximately 4 years, 2 months and 15 days prior to conviction and sentence.
The record does not show that this period was expressly considered during sentencing.
Since the application is unopposed and the statutory requirement is mandatory, this Court is duty bound to give effect to Section 333(2) of the Criminal Procedure Code.
The appropriate order is not to interfere with the sentence imposed but to direct that the sentence be computed from the date the Applicant was first placed in custody.
E. Orders
Accordingly, the Court makes the following orders:
a) The period spent in remand custody from 26th September 2014 to 11th December 2018 shall be taken into account in computing the sentence imposed.
b) The sentences shall be deemed to have commenced on 26th September 2014.
c) Orders to Apply to Criminal Misc application No. E104 of 2025
(On Consideration of Remand Period in Computation of Sentence)
A. Introduction
Before this Court is the Applicants application dated 24.7.2025 and application dated 8.12.25 filed on criminal misc application no E104 of 2025 Joseph Madenal Manini vs Republic seeking consideration of the period spent in remand custody pursuant to Section 333(2) of the Criminal Procedure Code
The applications are not opposed by the Prosecution.
B. Background
The record shows that the Applicant was first arraigned before the trial court on 26th September 2014.
He remained in custody throughout the trial and was subsequently convicted and sentenced on 11th December 2018.
There is no indication on record that the trial court expressly stated that it had taken into account the period spent in custody prior to conviction as required by law.
C. The Law
Section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya provides:
“Subject to the provisions of Section 38 of the Penal Code, whenever a person is sentenced to imprisonment for an offence, any period which he has spent in custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment.”
The provision is mandatory. A sentencing court must expressly demonstrate that it has considered the remand period.
In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court of Appeal held:
“The second is that the court is obliged to take into account the period already spent in custody. Failure to do so amounts to an error in principle.”
The Sentencing Policy Guidelines (2016) at paragraph 7.10 reinforce this position and require courts to factor in time spent in custody during trial.
The rationale behind Section 333(2) is to ensure proportionality in sentencing and to prevent an accused person from serving a term longer than that intended by law, consistent with Articles 28 and 50 of the Constitution.
D. Analysis
From 26th September 2014 to 11th December 2018, the Applicant was in remand custody for approximately 4 years, 2 months and 15 days prior to conviction and sentence.
The record does not show that this period was expressly considered during sentencing.
Since the application is unopposed and the statutory requirement is mandatory, this Court is duty bound to give effect to Section 333(2) of the Criminal Procedure Code.
The appropriate order is not to interfere with the sentence imposed but to direct that the sentence be computed from the date the Applicant was first placed in custody.
E. Orders
Accordingly, the Court makes the following orders:
a) The period spent in remand custody from 26th September 2014 to 11th December 2018 shall be taken into account in computing the sentence imposed.
b) The sentences shall be deemed to have commenced on 26th September 2014.
c) Orders to Apply to Criminal Misc application No. E104 of 2025