https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7151

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **MISCELLANEOUS CRIMINAL APPLICATION NO. E085 OF 2025** **BONIFACE ALWENA ………………………………….……….…...………… APPLICANT** **VERSUS** **REPUBLIC …..…………………………………………………….…..……… RESPONDENT** **RULING** 1. The Applicant was convicted for the offences of attempted murder contrary to Section 220 (a) of the Penal Code and conspiracy to commit murder contrary to Section 224 of the Penal after a trial in which the prosecution called nine witnesses. Thereafter, he was sentenced to serve four (4) years imprisonment. 2. The Applicant did not prefer an appeal against the conviction and sentence but has come to court with a prayer that the 17 months that he spent in remand custody be taken into account. The Respondent did not object to the application. 3. An application under Section 333 (2) of the Criminal Procedure Code is anchored on Article 165 (6) and (7) of the Constitution that empowers the High Court and provides:- ***“(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.*** ***(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”*** 1. The Applicant and four others were arraigned in court on 26th April 2023 and remanded in custody on the same day as the court deferred their application for bond. On 6th June 2023, the Applicant was admitted to bond of Ksh. 300,000/= with one Surety of similar amount. Pursuant to the grant of bail, the 1st, 3rd and 4th Accused persons were subsequently released on bond but the Applicant remained in custody until the case was determined on 17th March 2026. 2. In the case of ***Ahamad Abolfathi Mohammed & Another v. Republic [2018] KECA 743 (KLR)***, the Court held that:- **“…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...”** 1. It is therefore settled law that a convict should have the time spent in pre-trial custody credited to his sentence. The statutory provision empowering the court to credit the pre-trial custody period to the sentence is intended to ensure that an accused persons is not prejudiced by his inability to meet bond terms. In this case, the Applicant was charged and convicted of the same offence alongside three others. He is the only one who remained in custody for the duration of the trial. He was sentenced to serve four (4) years imprisonment alongside his three co-Accused who received the same sentence. The sentence therefore caused prejudice to the Applicant as ultimately, he will have been in custody for a far longer period than his cohort. 2. The Applicant is entitled to a fair trial which includes the right to equal protection and equal benefit of the law and the right to benefit from the least severe of the prescribed punishment from the offence as provided by Article 27 (1) and Article 50 (2) (p) of the Constitution. 3. By dint of Article 50 (1) and (2) of the Constitution and Section 333 (2) of the Criminal Procedure Code, the Accused had a right to have the time he spent in custody taken into account so as to ensure that he did not suffer prejudice through a more severe punishment than his co-Accused. 4. Consequently, I hold that the application has merit. The Applicant was arraigned in court on 26the April 2023. He remained in remand custody until 17th March 2025 when he was sentenced and committed to jail. The time spent in custody should be taken into account in computing his sentence as provided by Section 333 (2) of the Criminal Procedure code. 5. Orders accordingly. Dated, signed and delivered at Kakamega this 12th day of May 2026. **A. C. BETT** **JUDGE** **In the presence of:** The Applicant in person Ms. Akimat for the Respondent Court Assistant: Polycap