https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12091
The court held that the trial court did not comply with section 333(2) of the Criminal Procedure Code because, although it mentioned custody time during sentencing, it did not show how that period was factored into the final sentence. Since the applicant had been in continuous custody from 30 August 2018 until...
Source-derived case information.
- Citation
- [2026] KEHC 12091 (KLR)
- Parties
- Applicant: Josephat Erot Bitamoi; Respondent: Republic
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E003 of 2025
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application to Revisit Sentence Computation Under Section 333(2) CPC
- Outcome
- Application allowed
- Judges
- ["PJO Otieno"]
- Legal Topics
- Pre Sentence Custody Credit, Section 333(2) Criminal Procedure Code, Defilement Sentence Computation, Custodial Sentence Reduction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephat Erot Bitamoi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application to Revisit Sentence Computation Under Section 333(2) CPC
Legal Issues
- 1 Whether the applicant was entitled to have time spent in pre-sentence custody taken into account under section 333(2) of the Criminal Procedure Code.
- 2 Whether the trial court complied with the mandatory obligation to account for pre-sentence custody when sentencing.
Ratio Decidendi
The court held that the trial court did not comply with section 333(2) of the Criminal Procedure Code because, although it mentioned custody time during sentencing, it did not show how that period was factored into the final sentence. Since the applicant had been in continuous custody from 30 August 2018 until sentencing on 6 August 2021, he was entitled to have his sentence computed from the arrest date.
Court Disposition
Application allowed
Orders
- The applicant's sentence shall be computed from 30th August 2018, the date of arrest.
Full Case Text
Judgment text and source record
1 paragraphs
Bitamoi v Republic (Miscellaneous Criminal Application E003 of 2025) [2026] KEHC 12091 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12091 (KLR) Republic of Kenya In the High Court at Lodwar Miscellaneous Criminal Application E003 of 2025 PJO Otieno, J July 30, 2026 Between Josephat Erot Bitamoi Applicant and Republic Respondent Ruling 1.Before the Court is the Applicant's undated Notice of Motion supported by his affidavit sworn on 3rd January 2025, seeking the benefit conferred under Section 333(2) of the Criminal Procedure Code so that the period he spent in remand custody prior to the imposition of sentence is taken into account in computing his sentence to proportionately reduce that sentence. 2.Learned counsel for the Respondent, Mr. Otieno, informed the Court that the Respondent does not oppose the application. 3.The Applicant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Upon conviction, he was sentenced on 6th August 2021 to serve a twenty (20) years' imprisonment. Being dissatisfied with both the conviction and sentence, he preferred an appeal to this Court in Lodwar High Court Criminal Appeal No. 21 of 2021. The appeal was dismissed on 2nd May 2023. In that decision however the question of section 333(2) was never raised nor considered. 4.Section 333(2) of the Criminal Procedure Code imposes a mandatory obligation upon a sentencing court to take into account the period an accused person has spent in custody prior to sentencing. The object of the provision is to ensure that an offender does not serve a period of imprisonment in excess of that lawfully intended by the sentencing court. Although the trial magistrate indicated during sentencing that the period the Applicant had spent in custody had been taken into account, the sentencing proceedings do not demonstrate how that period was factored into the sentence ultimately imposed. A mere acknowledgment that an accused person was in custody does not, without more, amount to compliance with Section 333(2) of the Criminal Procedure Code. 5.The trial court's failure to expressly account for the period the Applicant spent in pre-sentence custody therefore amounted to non-compliance with Section 333(2) of the Criminal Procedure Code. The Applicant is consequently entitled to the benefit of that provision. 6.The record shows that the Applicant was arrested on 30th August 2018 and remained in continuous custody until his conviction and sentencing on 6th August 2021. Accordingly, the Applicant's sentence shall be computed from 30th August 2018, being the date of his arrest. 7.It is so ordered. DATED, SIGNED AND DELIVERED AT LODWAR THIS 30TH DAY OF JULY 2026PATRICK J O OTIENOJUDGE