[2025] KEHC 6902 (KLR)
The court held that Section 333(2) of the Criminal Procedure Code requires that any period spent in pre-trial custody must be taken into account when passing sentence. The applicant, having spent one year and ten months in remand custody prior to conviction and sentencing, is entitled to have this period deducted...
Source-derived case information.
- Citation
- [2025] KEHC 6902 (KLR)
- Parties
- Applicant: Evans Wanyama Masika; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Petition E054 of 2023
- Procedural Posture
- Constitutional Petition / Ruling on Application for Sentence Review
- Outcome
- application allowed
- Judges
- RN Nyakundi
- Legal Topics
- Sentencing Principles, Pre Sentence Custody, Remand Credit, Constitutional Rights, Sentence Reduction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Wanyama Masika
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the period spent in pre-trial custody should be factored into the applicant's sentence as required by Section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant is entitled to a reduction of sentence by the period spent in remand custody.
- 3 Whether the failure to consider pre-sentence custody violates constitutional rights under Articles 27, 22, 28, 25(c), and 50 of the Constitution.
Ratio Decidendi
The court held that Section 333(2) of the Criminal Procedure Code requires that any period spent in pre-trial custody must be taken into account when passing sentence. The applicant, having spent one year and ten months in remand custody prior to conviction and sentencing, is entitled to have this period deducted from the four-year custodial sentence imposed. The rationale is to ensure that the total period of incarceration does not exceed what is just and fair, and to give effect to the constitutional rights to fair trial and reasonable duration of proceedings. The court found that the committal warrant should be amended to reflect the correct sentence, factoring in the time already...
Court Disposition
application allowed
Orders
- The applicant's sentence shall be reduced by one year and ten months, being the period spent in pre-trial custody.
- The committal warrant shall be amended to give effect to Section 333(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
19 paragraphs
Masika v Republic (Petition E054 of 2023) [2025] KEHC 6902 (KLR) (28 May 2025) (Ruling)
Neutral citation: [2025] KEHC 6902 (KLR)
Republic of Kenya
In the High Court at Eldoret
Petition E054 of 2023
RN Nyakundi, J
May 28, 2025
Between
Evans Wanyama Masika
Petitioner
and
Republic
Respondent
Ruling
1. Before this court is an application by the Petitioner seeking the following orders:i.That the prayers sought are on sentence onlyii.That the petition be allowed, admitted, heard and determined in the soonest time possibleiii.That the petition is seeking enforcement of section 333(2), 362, 364(1) and 365 of the criminal procedure code in relation to sentences that have not factored the time spent in custody in reliance on article 27(1) (2) (4), 22, 28, 25(c), 50(1) (2) of the constitution of Kenyaiv.That I am seeking reduction of my sentence by 1 year 10 months the period I spent in remand custody but was not factored in the 4 years sentencev.That I beg to be present during hearing thereof
2. It is further annexed by an affidavit sworn by the said Evans Wanyama Masika which states as follows:i.That I am a Kenyan citizen adult male of sound of mind hence competent to swear this affidavitii.That, I was convicted and sentenced to serve 4 years imprisonment for the offence of unnatural offence c/sec 162 of the penal codeiii.That I spent 1 year 10 months in pre-trial custodyiv.That I am a young man who is seeking for a second chance in life since I have a young family depending on me.v.That may this honorable court exercise section 333(2) of the CPC and allow my sentence to commence as mitigated.vi.That I am a first offendervii.That I beg to be present during hearing thereofviii.That what I have deponed herein is true and correct to the best of my knowledge, belief and understanding sources of my information
3. This Application is purely on pre-sentence custody envisioned in Section 333(2) of the CPC. The term now very common in our sentencing scheme is sometimes rereferred to as pre-trial custody, time served in custody, remand custody, or pre-trial detention. The sentence determined under Section 333(2) of the code is the amount of custodial detention time which the Applicant though eligible for bond did not manage to meet the conditions set by the trial court. Generally speaking, the courts in deciding what sentence to impose on a person convicted of an offence ought to take into account the time he or she has spent in custody awaiting trial, and subsequent conviction and sentence. On the other hand, under the present criminal code a sentence commences only on entry of judgement by the trial court. The intention of parliament under Section 333(2) of the code was to remind the prosecution and the judiciary that an accused person has a right to have his or her offence prosecuted within a reasonable time. If this is the rationale then the Applicant is entitled to a credit period of one year 10 months. The committal warrant then shall therefore be amended to give effect to the provisions of Section 333(2) of the code.
4. It is so ordered.
GIVEN UNDER MY HAND AND THE SEAL OF THIS COURT THIS 28TH DAYOF MAY 2025. .........................R. NYAKUNDIJUDGE