https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12129

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL REVISION NO. E009 OF 2026** **JACOB MULIMA NAMABA …....…………………...........……………….………APPLICANT** **VERSUS** **REPUBLIC………………**.**……...………………….....….………………………..RESPONDENT** **RULING** 1. The Applicant was convicted of the offence of trafficking in narcotic drugs, in Kaloleni Criminal Case No. E107 of 2023. He was fined Kshs. 1,800,000/= and in default to serve 5 years imprisonment. 2. By his undated Application, the Applicant seeks that the period spent in remand custody pending trial, be considered as part of his sentence. 3. The Respondent opted not to file a response. 4. Section 333(2) of the Criminal Procedure Code provides as follows: ***Subject to the provisions of section 38 of the Penal Code (Cap. 63) 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 subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.*** 1. The proviso to Section 333(2) of the Criminal Procedure Code obligates the court to take into account the period an accused spent in custody pending trial. 2. Section 333(2) of the Criminal Procedure Code provides as follows: ***Subject to the provisions of section 38 of the Penal Code (Cap. 63) 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 subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.*** 1. The proviso to Section 333(2) of the Criminal Procedure Code requires the court while sentencing, to take into account the period an accused person has spent in custody pending trial. 2. In the case of **Bethwel Wilson Kibor v Republic [2009] eKLR**, the Court of Appeal had this to say about the said proviso: ***The incident took place way back in 1999. The appellant was promptly arrested and taken to court. There were long adjournments due to transfers and/or changes of trial Judges resulting in long incarcerations of the appellant. By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody. Ombija, J. who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody.*** 1. It is clear that a trial court must take into account the period spent in custody pending trial, and state so, when imposing sentence. 2. The record herein shows that the Applicant was arrested on 29.7.23 and was convicted on 7.12.23. When sentencing the Applicant, the trial Magistrate stated that “I have taken into account the time spent by the accused in custody” and proceeded to impose a fine of Kshs. 1,800,000/= and in default 5 years imprisonment. There is however no mention of the period spent in custody being included in the sentence. 3. The period the Applicant spent in custody was not taken into account in a meaningful way as envisaged in the proviso to Section 333(2) of the Criminal Procedure Code. 4. In this regard, I take guidance from the case of **Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR**, the Court of Appeal addressed its mind to the proviso to Section 333(2) of the Criminal Procedure Code and stated: ***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.*** The learned Judges went on to state: ***“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 in custody 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 333(s) 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 appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.*** 1. Flowing from the above authority, a trial court when imposing sentence is required to take into account in a meaningful way, the period spent in custody by an accused person, pending trial. As such, the imposed sentence must be is reduced proportionately by the period already spent in custody. As indicated herein, the period the Applicant spent in custody was not included in his sentence and was thus not taken into account in a meaningful way, as envisaged in the proviso to Section 333(2) of the Criminal Procedure Code. 2. I accordingly find that the Application herein is merited and the same is allowed on terms that the sentence imposed upon the Applicant shall run from 29.7.23, the date of his arrest. **DATED and DELIVERED in MALINDI this 31st day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **M. THANDE** **JUDGE**