1. Stephen Esmit Eroti , the Applicant, was convicted and sentenced for the offence of Defilement contrary to Section 8(1) (4) of the Sexual Offences Act to serve fifteen (15) years imprisonment.
2. Through an undated application he seeks an order of the court invoking Section 333(2) of the Criminal Procedure Code.
3. The alluded to provision of the law provides thus;
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 Ahmed Abolfathi Mohammed & Another v Republic [2018] eKLR the Court of Appeal stated that;
“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. That provision provides as follows:
“333(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.”
The appellants have been in custody from the date of their arrest on 19th June 2012. 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(s) 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.”
5. The trial court delivered itself thus;
“I therefore do not have the luxury of discretion at my disposal to pass partial sentence prescribed under Section 8(4) of the Sexual Offences Act No. 3 of 2006. I therefore sentence the Accused person to fifteen (15) years imprisonment. However, he has the legal right of appeal in fourteen (14) days.”
6. The Applicant was arrested on 31 st October, 2018. He did not post bail during trial. He was sentenced on 6 th March, 2020.
7. Clearly, the trial court did not pronounce itself on the duration the Applicant spent in remand custody which was an error.
8. For that reason, the application succeeds. Therefore, I call to this court the order by the lower court which I set aside and substitute with an order sentencing the Applicant to fifteen (15) years imprisonment effective from 31 st October, 2018.
9. It is so ordered.
HCCR REV E055 OF 2026 (RUL.) Page 2 of 2
2. Through an undated application he seeks an order of the court invoking Section 333(2) of the Criminal Procedure Code.
3. The alluded to provision of the law provides thus;
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 Ahmed Abolfathi Mohammed & Another v Republic [2018] eKLR the Court of Appeal stated that;
“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. That provision provides as follows:
“333(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.”
The appellants have been in custody from the date of their arrest on 19th June 2012. 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(s) 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.”
5. The trial court delivered itself thus;
“I therefore do not have the luxury of discretion at my disposal to pass partial sentence prescribed under Section 8(4) of the Sexual Offences Act No. 3 of 2006. I therefore sentence the Accused person to fifteen (15) years imprisonment. However, he has the legal right of appeal in fourteen (14) days.”
6. The Applicant was arrested on 31 st October, 2018. He did not post bail during trial. He was sentenced on 6 th March, 2020.
7. Clearly, the trial court did not pronounce itself on the duration the Applicant spent in remand custody which was an error.
8. For that reason, the application succeeds. Therefore, I call to this court the order by the lower court which I set aside and substitute with an order sentencing the Applicant to fifteen (15) years imprisonment effective from 31 st October, 2018.
9. It is so ordered.
HCCR REV E055 OF 2026 (RUL.) Page 2 of 2