RULING
1. The Applicant filed an Application dated 7 th November 2025 seeking review of the sentence delivered on 19th July 2018 by the trial judge. The Applicant relies on Section 333(2) of the Criminal Procedure Code and seeks to have the period spent in custody taken into account in computing the sentence imposed by the trial court.
Background
2. The Applicant, Victor Mafumbo Wafula, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63, Laws of Kenya.
3. The particulars of the charge were that on the 22nd day of December 2015, at Misemwa Village in Bungoma East Sub-County, he murdered Timothy Maywe Wanjala.
4. Upon perusal of the record, I note that the Applicant entered into a plea agreement with the State. Pursuant to the terms of the plea agreement, the Applicant pleaded guilty to the lesser charge of manslaughter. Consequently, on 19th July 2018, he was convicted on his own plea of guilty and sentenced to twelve (12) years’ imprisonment.
5. The Applicant contends that upon conviction, the period he spent in remand custody was not considered in computing his sentence, contrary to Section 333(2) of the Criminal Procedure Code. He therefore seeks a review of the sentence to account for the time spent in custody prior to conviction.
Issue for Determination
6. The sole issue for determination is:
Whether the period spent in custody during trial was considered in computing the Applicant’s sentence.
Analysis and Determination
7. Upon perusal of the record, I note that the Applicant was charged on 7th January 2016 and took plea on 27th January 2016. The Applicant applied to be released on bond; however, his application for bail/bond was declined on the basis of the pre-bail report. Consequently, he remained in custody throughout the duration of the trial.
8. Upon further perusal of the sentencing proceedings, I note that although the learned trial Judge sentenced the Applicant to twelve (12) years’ imprisonment, the period spent in remand custody was not expressly taken into account.
9. In sentencing the accused person, this Court is obligated to take into account the period already spent in custody before conviction and sentence. Section 333(2) of the Criminal Procedure Code expressly requires the sentencing court to consider the time spent in remand custody so as to ensure that the ultimate sentence imposed is fair, proportionate, and not excessive.
10. The Court has further considered the Judiciary Sentencing Policy Guidelines, 2016, particularly paragraph 7.10 and paragraph 23.8, which underscore the principle of proportionality in sentencing and require courts to factor in pre-sentence detention. Failure to account for time spent in custody may result in an unduly harsh sentence that offends the constitutional principles of fairness and dignity.
11. This position has been affirmed by the superior courts, including in Bethwel Wilson Kibor v. Republic | (2009) JELR 97590 (CA) where the Court emphasized that consideration of time spent in custody is mandatory and not discretionary. The Court of Appeal has consistently held that sentencing courts must expressly demonstrate that such period has been taken into account when computing sentence.
12. Accordingly, in computing the sentence herein, this Court has taken into consideration the period the accused person remained in remand custody prior to conviction. The sentence imposed shall therefore run with due regard to the said period already served in custody in compliance with section 333(2) of the Criminal Procedure Code and the constitutional principles of fair trial and proportional sentencing.
Final Orders
11. Consequently, I make the following orders:
a. The Application is hereby allowed.
b. The Prisons Department shall compute the remainder of the Applicant’s sentence taking into account:
i. the period spent in custody prior to sentence; and
ii. remission, where applicable in accordance with the law.
RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT NAIROBI THIS 28 TH DAY OF MAY 2026
CHELANG’AT MUTAI
JUDGE
1. The Applicant filed an Application dated 7 th November 2025 seeking review of the sentence delivered on 19th July 2018 by the trial judge. The Applicant relies on Section 333(2) of the Criminal Procedure Code and seeks to have the period spent in custody taken into account in computing the sentence imposed by the trial court.
Background
2. The Applicant, Victor Mafumbo Wafula, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63, Laws of Kenya.
3. The particulars of the charge were that on the 22nd day of December 2015, at Misemwa Village in Bungoma East Sub-County, he murdered Timothy Maywe Wanjala.
4. Upon perusal of the record, I note that the Applicant entered into a plea agreement with the State. Pursuant to the terms of the plea agreement, the Applicant pleaded guilty to the lesser charge of manslaughter. Consequently, on 19th July 2018, he was convicted on his own plea of guilty and sentenced to twelve (12) years’ imprisonment.
5. The Applicant contends that upon conviction, the period he spent in remand custody was not considered in computing his sentence, contrary to Section 333(2) of the Criminal Procedure Code. He therefore seeks a review of the sentence to account for the time spent in custody prior to conviction.
Issue for Determination
6. The sole issue for determination is:
Whether the period spent in custody during trial was considered in computing the Applicant’s sentence.
Analysis and Determination
7. Upon perusal of the record, I note that the Applicant was charged on 7th January 2016 and took plea on 27th January 2016. The Applicant applied to be released on bond; however, his application for bail/bond was declined on the basis of the pre-bail report. Consequently, he remained in custody throughout the duration of the trial.
8. Upon further perusal of the sentencing proceedings, I note that although the learned trial Judge sentenced the Applicant to twelve (12) years’ imprisonment, the period spent in remand custody was not expressly taken into account.
9. In sentencing the accused person, this Court is obligated to take into account the period already spent in custody before conviction and sentence. Section 333(2) of the Criminal Procedure Code expressly requires the sentencing court to consider the time spent in remand custody so as to ensure that the ultimate sentence imposed is fair, proportionate, and not excessive.
10. The Court has further considered the Judiciary Sentencing Policy Guidelines, 2016, particularly paragraph 7.10 and paragraph 23.8, which underscore the principle of proportionality in sentencing and require courts to factor in pre-sentence detention. Failure to account for time spent in custody may result in an unduly harsh sentence that offends the constitutional principles of fairness and dignity.
11. This position has been affirmed by the superior courts, including in Bethwel Wilson Kibor v. Republic | (2009) JELR 97590 (CA) where the Court emphasized that consideration of time spent in custody is mandatory and not discretionary. The Court of Appeal has consistently held that sentencing courts must expressly demonstrate that such period has been taken into account when computing sentence.
12. Accordingly, in computing the sentence herein, this Court has taken into consideration the period the accused person remained in remand custody prior to conviction. The sentence imposed shall therefore run with due regard to the said period already served in custody in compliance with section 333(2) of the Criminal Procedure Code and the constitutional principles of fair trial and proportional sentencing.
Final Orders
11. Consequently, I make the following orders:
a. The Application is hereby allowed.
b. The Prisons Department shall compute the remainder of the Applicant’s sentence taking into account:
i. the period spent in custody prior to sentence; and
ii. remission, where applicable in accordance with the law.
RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT NAIROBI THIS 28 TH DAY OF MAY 2026
CHELANG’AT MUTAI
JUDGE