https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10188

Nabuni v Republic (Criminal Revision E099 of 2026) [2026] KEHC 10188 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10188 (KLR) Republic of Kenya In the High Court at Kibera Criminal Revision E099 of 2026 DR Kavedza, J July 13, 2026 Between Eliya Nateleng Nabuni Applicant and Republic Respondent Ruling 1.The applicant was charged and convicted of the offence of obtaining money by false pretenses contrary to section 313 of the Penal Code. He was sentenced to serve two (2) years imprisonment. 2.The applicant has filed the present application dated 3rd June 2026 seeking sentence review. He contends that the trial court failed to consider the period spent in remand custody before sentencing, contrary to section 333(2) of the Criminal Procedure Code. He therefore urges the Court to revise the commencement date of his sentence. 3.I have considered the application, the grounds advanced, the record and the applicable law. 4.The proviso to section 333(2) of the Criminal Procedure Code imposes a mandatory duty on a sentencing court to consider the period an accused person has spent in lawful custody before sentence. This principle has been affirmed by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR and Bethwel Wilson Kibor v Republic [2009] eKLR, and by the High Court in Vincent Sila Jona & 87 Others v Kenya Prison Service & 2 Others [2021] eKLR. 5.It is therefore mandatory upon every sentencing court to consider the period spent in pre-trial custody unless the law expressly provides otherwise. 6.The record shows that the applicant was arrested on 4th August 2025 and remained in custody throughout the trial until his conviction on 31st March 2026, having never been released on bond or bail. I have examined the original trial court record and find no indication that the learned trial magistrate took the period spent in remand custody into account when passing sentence. The omission warrants this Court's intervention under section 333(2) of the Criminal Procedure Code. 7.Consequently, the application is merited and is hereby allowed. The sentence imposed by the trial court shall run from 4th August 2025, being the date of the applicant's arrest, in accordance with section 333(2) of the Criminal Procedure Code, Cap. 75. Laws of Kenya.Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 13TH JULY 2026D. KAVEDZAJUDGEIn the presence of:Applicant PresentMutuma for the RespondentKarimi Court Assistant