1. The Applicant herein, vide the notice of motion dated 12th February, 2026 seeks an order for the review of his sentence, so that the period that he spent in custody awaiting conclusion of his trial is taken into account, in line with Section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya, which provides that:
“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.”
(Underlined emphasis).
2. I have gone through the record of the lower court and note from the charge sheet that the Applicant was charged with the following two counts:
a. Threatening to kill contrary to Section 223(1) of the Penal Code.
b. Assault causing actual bodily harm contrary to Section 251 of the Penal Code.
3. During his trial, the Applicant remained remanded in custody for a cumulative period of 447 days, pending the conclusion of the trial. He was ultimately convicted on the first count and sentenced on 16th December, 2025 to serve one year imprisonment. He was acquitted on the second count.
4. In imposing the sentence, the learned trial Magistrate, Hon. L.N. Kiniale rendered herself as follows:
“Accused has been in custody for over one year. I sentence him to serve imprisonment for one year. Right of appeal 14 days.”
5. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR held that: -
““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…”.
6. The Judiciary Sentencing Policy Guidelines provides that:
“The proviso to Section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. 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. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”
7. From the authority and the text above, it is clear from the record of the trial court, which is before me, that the period that the Applicant remained in custody while his trial proceeded was not properly taken into account by the trial court, as provided for under Section 333(2) of the Criminal Procedure Code.
8. It was not sufficient for the learned trial Magistrate to merely state that she had taken into account the period that the Applicant had been in custody. The trial court was under the obligation to reduce the sentence proportionately by an equal period. The trial court should have ordered that the period of 447 days be reduced from the sentence.
9. In the result, and considering the foregoing, the Applicant’s application is merited. I allow it and review the sentence. Noting that period of 447 days was longer than the sentence of one year that the learned trial Magistrate imposed, the court ought to have determined that the period of remand was sufficient punishment.
10. Consequently, I commute the sentence of one year to the period spent in remand custody and order that the Applicant be set at liberty forthwith unless otherwise lawfully detained.
11. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 15th day of April, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
“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.”
(Underlined emphasis).
2. I have gone through the record of the lower court and note from the charge sheet that the Applicant was charged with the following two counts:
a. Threatening to kill contrary to Section 223(1) of the Penal Code.
b. Assault causing actual bodily harm contrary to Section 251 of the Penal Code.
3. During his trial, the Applicant remained remanded in custody for a cumulative period of 447 days, pending the conclusion of the trial. He was ultimately convicted on the first count and sentenced on 16th December, 2025 to serve one year imprisonment. He was acquitted on the second count.
4. In imposing the sentence, the learned trial Magistrate, Hon. L.N. Kiniale rendered herself as follows:
“Accused has been in custody for over one year. I sentence him to serve imprisonment for one year. Right of appeal 14 days.”
5. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR held that: -
““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…”.
6. The Judiciary Sentencing Policy Guidelines provides that:
“The proviso to Section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. 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. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”
7. From the authority and the text above, it is clear from the record of the trial court, which is before me, that the period that the Applicant remained in custody while his trial proceeded was not properly taken into account by the trial court, as provided for under Section 333(2) of the Criminal Procedure Code.
8. It was not sufficient for the learned trial Magistrate to merely state that she had taken into account the period that the Applicant had been in custody. The trial court was under the obligation to reduce the sentence proportionately by an equal period. The trial court should have ordered that the period of 447 days be reduced from the sentence.
9. In the result, and considering the foregoing, the Applicant’s application is merited. I allow it and review the sentence. Noting that period of 447 days was longer than the sentence of one year that the learned trial Magistrate imposed, the court ought to have determined that the period of remand was sufficient punishment.
10. Consequently, I commute the sentence of one year to the period spent in remand custody and order that the Applicant be set at liberty forthwith unless otherwise lawfully detained.
11. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 15th day of April, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.