https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10278

Bet v Republic (Miscellaneous Criminal Application E208 of 2024) [2026] KEHC 10278 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10278 (KLR) Republic of Kenya In the High Court at Kakamega Miscellaneous Criminal Application E208 of 2024 S Mbungi, J July 13, 2026 IN THE MATTER OF: Section 333(2) of the Criminal Procedure Code, Section 38 of the Penal Code, Articles 25(c), 27, 50(2)(p) and 165 of the Constitution of Kenya, 2010 (Formerly HCCRA Appeal No. 112 of 2006 – Kakamega) (Court of Appeal No. 578 of 2010 – Kisumu) (Petition No. 81 of 2019 – Kakamega High Court) (Original Case File No. 2685 of 2004 – SPM’s Court Kakamega) Between Godfrey Shivo Bet Applicant and Republic Respondent Ruling 1.The Applicant, Godfrey Shivo Bet, has moved this Court by a Notice of Motion seeking an order that the period he spent in remand custody prior to his conviction and sentence be taken into account pursuant to Section 333(2) of the Criminal Procedure Code. 2.The application is supported by the Applicant’s affidavit wherein he depones that he was arrested on 29th August 2004 and remained in remand custody until 5th October 2006, when he was convicted of the offence of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to suffer death. 3.He further states that the sentence of death was subsequently substituted with life imprisonment and was later reviewed by this Court in Petition No. 81 of 2019 and substituted with a sentence of thirty (30) years’ imprisonment. 4.The Applicant contends that although his sentence has since been reviewed, the period he spent in remand custody before conviction was not considered in computing the sentence. 5.He therefore prays that this Court grants him the benefit accorded by Section 333(2) of the Criminal Procedure Code. Issue for Determination 6.The sole issue for determination is whether the period spent in remand custody prior to conviction and sentence was taken into account pursuant to Section 333(2) of the Criminal Procedure Code. Analysis and Determination 7.The application is founded on Section 333(2) of the Criminal Procedure Code, Section 38 of the Penal Code and Articles 25(c), 27, 50(2)(p) and 165 of the Constitution. 8.Section 333(2) of the Criminal Procedure Code obligates a sentencing court to take into account the period an accused person has spent in lawful custody before sentence is imposed. 9.The Court of Appeal authoritatively interpreted this provision in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, where it held that it is not sufficient for a sentencing court merely to state that it has considered the period spent in custody. The court must give practical effect to Section 333(2) by reducing the sentence to account for the time already served in remand custody. 10.Likewise, in Bethwel Wilson Kibor v Republic [2009] eKLR, the Court of Appeal emphasized that the period spent in custody before conviction should be considered to ensure that the sentence ultimately served is fair and proportionate. 11.In Caroline Auma Majabu v Republic [2014] eKLR, the Court of Appeal reiterated that failure by a trial court to comply with Section 333(2) constitutes an error in sentencing capable of correction by the appellate or revision court. 12.This position is further reinforced by the Judiciary Sentencing Policy Guidelines, 2016, paragraph 7.10, which direct sentencing courts to take into account the period already spent in custody before passing sentence. 13.Having considered the application, the affidavit in support, the record of the proceedings and the applicable law, I note that the Applicant was arrested on 29th August 2004 and remained in remand custody until 5th October 2006 when sentence was pronounced. 14.There is nothing on the record to demonstrate that the sentencing court or the subsequent resentencing court expressly credited the Applicant with the period spent in remand custody as required under Section 333(2) of the Criminal Procedure Code. 15.The Applicant is not inviting this Court to alter or reduce the sentence of thirty (30) years imposed upon resentencing. Rather, he seeks the statutory benefit that expressly provided under Section 333(2) of the Criminal Procedure Code. 16.That prayer is properly founded in law and is supported by the constitutional principles of fair trial and proportionality in sentencing. 17.I am therefore satisfied that the application has merit. 18.Accordingly, the Court makes the following orders:a.The Notice of Motion is hereby allowed.b.Pursuant to Section 333(2) of the Criminal Procedure Code, the period the Applicant spent in lawful remand custody from 29th August 2004 to 5th October 2006 shall be taken into account in computing his sentence.c.The Applicant shall be credited with the entire period spent in remand custody before conviction when calculating the sentence of thirty (30) years’ imprisonment imposed upon resentencing.d.The Officer in Charge of the prison where the Applicant is currently held shall recompute the Applicant’s sentence in accordance with this ruling and the applicable law.e.The Deputy Registrar shall forthwith transmit a certified copy of this ruling to the Officer in Charge of the prison where the Applicant is incarcerated for compliance. 19.It is so ordered. 20.Right of Appeal 14 days. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 13TH DAY OF JULY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angog’a/VelmaApplicant present.Court Assistant to up0load the ruling on the CTS.