https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11175

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **HCCRA NO. E112 OF 2023** **JOHN MWANGI HARRISON ……………….……………....APPLICANT** **VERSUS** **REPUBLIC…………………………………………..…………..RESPONDENT** **JUDGMENT** **The Appellants Case;** 1. After the hearing of the criminal case, the appellant was sentenced to one year imprisonment at Muranga law court. 1. Being dissatisfied with the decision, the appellant lodged an appeal to high court vide HCCRA. NO 14 of 2017 at Muranga. 1. The matter was remitted back to the trial court for the re-trial vide SOA. CASE NO E019 OF 2023 at Muranga. 1. After the hearing of the case, he was sentenced to 12 years imprisonment on 23.10.2023. 1. Being dissatisfied with the sentence, the appellant lodged an appealed in the high court vide criminal appeal No E112 OF 2023 at Muranga for sentence consideration. He had no issue with the conviction. 1. In respect of the instant appeal, the appellant filed an Amended Ground of Appeal dated on the following grounds: - 1. THAT Appeal is against the sentence. 2. THAT the trial magistrate erred in law and facts by failing to consider the period. 1. He has served in remand custody during the pre-trial of this case. From his arrest on 7.12.2017 to his conviction on 23.10.2023. Pursuant to section 333(2) of the CPC. 1. He seeks the court's intervention in sentencing and its computation only for the interest of justice, since he was not bailed out during the pre-trial of this case. **Applicability of Section 216, 329 And 333 (2) Of the C P C**. 1. The constitution of Kenya 2010 is very clear that every person is equal before the law and has equal rights and equal benefits of the law. 1. He submits that, every accused person is constitutionally guaranteed for benefits of any written law for the purpose of ensuring fairness in criminal trial process. 1. The appellant’s case is that he was arrested on 7th DEC 2017 and convicted on 23.10. 2023. He was denied the benefit of section 216, 329 and 333(2) of the criminal procedure code. 1. The trial magistrate did not consider the period that he spent in custody during the pre- trial of this case bearing in mind that he was not bailed out according to him. 1. He argues that every person has the right under Article 27 (1) (2)(4) As read with Article 50 (2) (p) of the constitution. Provision of section 333(2) of the CPC. 1. It is his case that very sentence should commence from the date of arrest as enunciated in the case of Ahamad Abofoli Muhamad Vs Republic (2018) as a result of which he has the right to benefit of the least punishment/sentence. 1. He places reliance in the case of **Kamili Kuhenderwa Nzili Vrs** **Republic Pet. No 7 Of 2022** where the court ruled sentence should run from the date of arrest. 1. It is further his case that the failure by the trial court to invoke section 333(2) of the Criminal Procedure Code led to the denial of his fundamental rights under the aforesaid provisions of the law. 1. From the trial court proceeding there is no indication that the trial court considered the pre-trial detention period as the law prescribed hence denied him the applicant the benefit of section 333 (2) of the criminal procedure code, The court ought not to let his constitutional right under the aforesaid provision remain violated/denied as it amounts to dishonesty discrimination of the law in sentence determination and its computation as well. 1. He also relies in the case of **Abdul Azizi Oduor and Stephen** **Omondi Wanvama vs Republic** where the court of appeal addressed a case of a similar nature and granted an order that rendered the pre-trial detention period to be factored in as a part of the imposed sentence. 1. The appellant prays that the court considers Section 333 (2) of the C.P.C his favour. **The Respondents case;** 1. The respondent opposes the appeal and submits that the appellant was charged with the offence of Indecent Act with an adult contrary to section I(A) of the SOA. 1. After the trial the appellant was sentenced the appellant to 12 years imprisonment. 1. The present appeal is on sentence and specifically that the trial court did not apply section 333(2) of the CPC. 1. This being a first appeal, the duty of the court was well stated in **Okeno v Republic [19721 EA 32 thus:-** *“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to afresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [19581 E.A 424. "* 1. On the issue of sentencing, Section 333(2) of the CPC 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. 1. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 1. The import of the above provision is that the trial court should consider the time spent in custody where the appellant has not secured bail/bond. 1. The appellant argues that this period was between 7.12.2017 to 23.10.2023. 1. The appellant was initially charged for the offence of rape contrary to section 7 of the SOA and the trial court found him guilty and he was sentenced to serve 11 years. 1. Dissatisfied with this, he appealed in HCCRA No. 14 of 2017 where the High Court ordered for a retrial which is the subject of the present appeal. 1. According to the Respondent, The two cases are independent and thus the time spent in custody cannot be considered as having began to run from the time of the initial case which was heard and determined. 1. In the present case the provisions of section 333(2) of the CPC were well complied with. 1. It is submitted that at page 8 of the judgment, the court in sentencing considered the time the accused spent in custody as it pronounced itself. 1. The appellant cannot then say that the provisions of section 333(2) CPC were not complied with, the record of the lower court speaks for itself. 1. The respondent argues that the appeal should be dismissed. **Analysis and Determination;** 1. Section 333(2) of the CPC 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. 1. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 1. Section 333(2) of the Criminal Procedure Code applied to the original sentence as well as the sentence imposed during resentencing. 1. The court disagrees with the Respondent's argument that the two cases are independent and thus the time spent in custody cannot be considered as having begun to run from the time of the initial case which was heard and determined. 1. It matters not at what trial phase the accused was detained. 2. The law provides that, provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 1. The operative words are that, “has, prior to such sentence, been held in custody.” The section does not create any distinction when it comes to the issue of the custody [timing. It](http://timing.it) could be a detention during the first trial or during a retrial. 1. What counts is the fact that an accused person has been in custody prior to the sentencing. 1. The sum effect of this is that the entire time that an accused person has been in custody as of the last time he is sentenced, must benefit from Section 333(2) of the CPC and he must benefit from a deduction of the dates that he was in custody while competing the term served. 1. The court is satisfied that the appellant has made out case that warrants the grant of the orders sought. **Order;** 1. An order is hereby issued that all the days spent in custody before the sentencing that the appellant is currently serving be computed within section 333 (2) of the C.P.C. **Dated, Signed and Delivered virtually at Eldoret this 13th Day of May, 2026.** **……………………………..** **J. CHIGITI (SC)** **JUDGE**