https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10999

Cheruiyot v Republic (Criminal Application E043 of 2026) [2026] KEHC 10999 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] KEHC 10999 (KLR) Republic of Kenya In the High Court at Kericho Criminal Application E043 of 2026 JC Mutai, J July 15, 2026 Between Bernard Cheruiyot Applicant and Republic Respondent Ruling 1.The Applicant filed an undated Application but received at the Court registry on 3rd July 2025 where he seeks to move under section 333(2) of CPC. The Applicant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. After full trial, he was convicted on 01/08/2023 and sentenced to 15 years. 2.He sought to rely on Section 333(2) of the Criminal Procedure Code. He contends that the 1 year, 5 months and 3 days spent in custody before sentencing was not considered in his sentence computation. He was sentenced to 15 years imprisonment. 3.Section 333(2) of the CPC provides as follows:(1)A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.(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. Analysis and Determination 4.The Applicant seeks the benefit of section 333(2) of the Criminal Procedure Code on the ground that he remained in custody for one (1) year, five (5) months and three (3) days before he was convicted and sentenced, and that the said period was not taken into account when sentence was imposed. 5.The proviso to section 333(2) of the Criminal Procedure Code is couched in mandatory terms. It requires that where an accused person has been held in custody prior to sentence, the sentencing court shall take that period into account in determining the sentence to be served. The object of the provision is to ensure that an offender does not serve a longer period of imprisonment than is warranted by law merely because he remained in custody pending the determination of his case. 6.I have perused the record of the trial court. The Applicant was arrested and remained in custody for a period of one (1) year, five (5) months and three (3) days before he was convicted and sentenced to fifteen (15) years' imprisonment. There is nothing on the record to demonstrate that the sentencing court expressly considered the period spent in remand custody when imposing sentence. 7.The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR emphasized that compliance with section 333(2) requires the sentencing court to expressly take into account the period an accused person spent in custody prior to sentence. Where the record is silent, the High Court is entitled to give effect to the proviso by directing that the remand period be taken into account in computing the sentence. 8.In the present case, the State does not oppose the application. I am satisfied that the Applicant is entitled to the benefit of section 333(2) of the Criminal Procedure Code. Orders 9.The application is hereby allowed. 10.It is hereby ordered that, in computing the Applicant's sentence of fifteen (15) years' imprisonment, the prison authorities shall take into account the period of one (1) year, five (5) months and three (3) days that the Applicant spent in lawful custody before sentence, in accordance with section 333(2) of the Criminal Procedure Code. DELIVERED AT KERICHO ON 15TH JULY 2026 CHELANGAT MUTAIJUDGEIn the presence of:-Ms. Loice Osoro for the StateBernard Cheruiyot - ApplicantCourt Assistant – Irene