https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9218
Section 333(2) of the Criminal Procedure Code is mandatory on credit for time spent in custody. Because the applicant remained in remand from arrest until conviction and the trial court failed to account for that period, the sentence had to run from the date of arrest.
Source-derived case information.
- Citation
- [2026] KEHC 9218 (KLR)
- Parties
- Applicant: Catherine Eshijuku Malika; Respondent: Republic
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E057 of 2026
- Procedural Posture
- Criminal Appeal / Sentence Review Application
- Outcome
- Application allowed
- Judges
- ["DR Kavedza"]
- Legal Topics
- Conspiracy to Traffic Narcotic Drugs, Credit for Time Spent in Remand Custody, Section 333(2) Criminal Procedure Code, Adjustment of Sentence Commencement Date
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Eshijuku Malika
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Sentence Review Application
Legal Issues
- 1 Whether the trial court failed to account for time spent in remand custody when computing sentence.
- 2 Whether the sentence should be backdated to the date of arrest under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
Section 333(2) of the Criminal Procedure Code is mandatory on credit for time spent in custody. Because the applicant remained in remand from arrest until conviction and the trial court failed to account for that period, the sentence had to run from the date of arrest.
Court Disposition
Application allowed
Orders
- The sentence imposed by the trial court shall run from 28th December 2023, the date of the applicant's arrest.
- Orders accordingly.
Full Case Text
Judgment text and source record
1 paragraphs
Malika v Republic (Criminal Appeal E057 of 2026) [2026] KEHC 9218 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 9218 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E057 of 2026 DR Kavedza, J June 24, 2026 Between Catherine Eshijuku Malika Applicant and Republic Respondent Ruling 1.The applicant was charged and convicted for the offence of Conspiracy to Traffic contrary to section 4(B)4 as read with section 4(B)5 of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994. She was sentenced to pay a fine of Kshs. 100 million in default to serve one-year imprisonment. In addition he was sentenced to serve seven years imprisonment to run concurrently. 2.The applicant has now filed an application seeking sentence review. The arguments raised are that the trial court failed to consider the time spent in remand custody during the computation of his sentence. 3.I have considered the application, the arguments in support and the applicable law. 4.The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to consider the time already spent in custody. The duty to take in account the period an accused person had remained in custody in sentencing under the proviso to section 333(2) of the Criminal Procedure Code which is couched in mandatory terms was acknowledged by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR and Bethwel Wilson Kibor vs. Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others vs Kenya Prison Service & 2 others [2021] eKLR. 5.It is therefore mandatory for a sentencing court to consider the period an accused person has spent in custody before sentence, unless otherwise precluded by law. 6.The Applicant was arrested on 28th December 2023 and remained in custody throughout the trial until her conviction on 7th May 2025. She therefore spent one (1) year, four (4) months and nine (9) days in remand custody. I have perused the original record and note that the trial court failed to consider the time was held in remand custody during trial as she was never released on bail/bond. 7.In the premises, the application is allowed. The sentence imposed by the trial court shall be run from 28th December 2023, the date of the applicant’s arrest pursuant to section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya. Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 24TH DAY OF JUNE 2026. __________________ D. KAVEDZAJUDGEIn the presence of:Applicant PresentOtiya for the RespondentKarimi Court Assistant.