https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12238
The court found that section 333(2) of the Criminal Procedure Code is mandatory and that the trial court had omitted the applicant's remand period from the 5-year sentence. Since the applicant had been in custody from 11 March 2025 to 16 September 2025, the court allowed the application and ordered that 6 months and...
Source-derived case information.
- Citation
- [2026] KEHC 12238 (KLR)
- Parties
- Applicant: Methusela Kwemoi Ndiwa; Respondent: Republic
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E032 of 2026
- Procedural Posture
- Criminal Application / Sentence Review/application Under Section 333(2) CPC
- Outcome
- Application allowed
- Judges
- ["E Ominde"]
- Legal Topics
- Credit for Time Spent in Remand Custody, Section 333(2) Criminal Procedure Code, Sentence Computation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Methusela Kwemoi Ndiwa
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Sentence Review/application Under Section 333(2) CPC
Legal Issues
- 1 Whether the remand period should be factored into the applicant's sentence under section 333(2) of the Criminal Procedure Code.
- 2 Whether the trial court failed to account for time spent in custody before sentencing.
Ratio Decidendi
The court found that section 333(2) of the Criminal Procedure Code is mandatory and that the trial court had omitted the applicant's remand period from the 5-year sentence. Since the applicant had been in custody from 11 March 2025 to 16 September 2025, the court allowed the application and ordered that 6 months and 5 days be factored into the sentence.
Court Disposition
Application allowed
Orders
- The period of 6 months and 5 days spent in remand custody shall be factored into the applicant's 5-year sentence.
- Right of appeal within 14 days.
Full Case Text
Judgment text and source record
1 paragraphs
Ndiwa v Republic (Criminal Application E032 of 2026) [2026] KEHC 12238 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12238 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Application E032 of 2026 E Ominde, J July 30, 2026 Between Methusela Kwemoi Ndiwa Applicant and Republic Respondent Ruling 1.The Applicant herein moved this Court by way of undated Notice of Motion wherein prays to Court that as provided under Section 333(2) of the Criminal Procedure Code, the Court considers and factors into his sentence the period that he spent in remand custody during the trial. 2.In the Affidavit is support of the Application, he states that he was charged with the offences of Threatening to Kill/Destroying Cultivated crops/Possession of Bhang/Attempted Arson/Creating disturbance/Assaulting a Police Officer, convicted and sentenced to 5 years’ imprisonment in Sirisia Criminal Cases No. E131 and E132 of 2025. He states that he has no issue with the conviction and the sentence save for his prayer under Section 333(2) aforementioned. 3.Counsel for the State in his oral representations stated that he has no objection to the period that the Applicant spent in remand be factored into the Applicant’s 5 year’ sentence as he has prayed. I have considered the Applicant’s Application. I have taken into consideration the fact that the provision under which the application has been made is a mandatory provision and in this regard, the Application has merit. 4.I have perused the record of the proceedings of sentencing. It shows that the remand period was not factored into the sentence of 5 years’ imprisonment that the trial court imposed. The record shows that the Applicant was charged on 11th March 2025 and remanded in custody until 16th September 2025 when he was sentenced. 5.This brings the period that the Applicant spent in custody to 6 Months and 5 days. I therefore allow the Applicant’s Application and direct the period of 6 Months and 5 days that the applicant spent in remand custody be factored into his sentence of 5 years’ imprisonment. 6.Right of Appeal 14 days READ DATED AND SIGNED AT BUNGOMA ON 30TH JULY 2026.E. OMINDE JUDGE