https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9135

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **CRIMINAL DIVISION** **MISCELLANEOUS CRIMINAL APPLICATION NO. E010 OF 2026** **FRANCIS KARIUKI MWANGI…………….………….……APPLICANT** **VERSUS** **REPUBLIC……..…………………...……………………...RESPONDENT** **RULING** 1. The Applicant **FRANCIS KARIUKI MWANGI** has filed this application dated **16th March 2026** seeking to have his sentence reviewed so as to take into account the period which he has spent in remand custody prior to his conviction. 2. The Applicant had been charged in the High Court with the offence of **MURDER CONTRARY TO SECTION 203 of the PENAL CODE**. Following a Plea Agreement dated **21st November 2023** the Applicant pleaded Guilty to the offence of **MANSLAUGHTER CONTRARY TO SECTION 202 as read with SECTION 205** of the Penal Code. 3. The facts were read out to the Applicant and he maintained his plea of Guilty. The court then sentenced the Applicant to serve **ten (10) years** imprisonment. 4. The Applicant has now filed this present application seeking to have the period which he spent in pre-trial detention factored into his sentence. 5. **Section 333(2)** of the **Penal Code Cap 63** Laws of Kenya provides as follows;- **“Subject to the provisions of Section 38 of the Penal Code, 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 sub-section (1) has, prior to such sentence, been* held in custody, the sentence shall take account of the period spent in custody.” [Own emphasis]** It is clear from the above proviso that the law requires courts to take into account the period the convict spent in custody. 6. The provisions of **section 333(2)** of the Criminal Procedure Code were considered in this case of **AHAMAD ABOLFADHI MOHAMMED** **& Another vs REPUBLIC [2018] eKLR** where the Court of Appeal held as follows:- **“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the *Criminal Procedure Code*.** **…………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 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 332 (2)* 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. We find that the first appellate court misdirected itself in that respect and should have directed the appellant’s sentence of imprisonment to run from the date of their arrest on 19th June 2012.” [Own emphasis]** 7. The **Judiciary Sentencing Policy Guidelines clauses 7:10 and** **7:11** state that:- **“The proviso to section 332(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is** **not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial**.” 8. The Applicant has prayed that the period he spent in remand be factored into his sentence. I have carefully perused the proceedings in the High Court. I note that the court was remiss in failing to comply take into account the period spent in remand. The Applicant was first arraigned in Court on **26th April 2023**. He was sentenced on **21st November 2023**. Thus the Applicant spent a total of **seven (7) months** in remand custody. 9. The Applicant is entitled to have this period of **seven (7) months** discounted. I therefore allow this application and direct that the ten (10) year sentence imposed upon the Applicant shall run from **26th April** **2023**. It is so ordered. **Dated in Nyeri this 29th day of June 2026.** **………………..** **MAUREEN A. ODERO** **JUDGE**