https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10181
The applicant had remained in custody from arrest until conviction, and the trial record showed no indication that the magistrate considered that custody period when sentencing. That omission triggered section 333(2) CPC, so the sentence had to run from the date of arrest.
Source-derived case information.
- Citation
- [2026] KEHC 10181 (KLR)
- Parties
- Applicant: Moses Kabali; Respondent: Republic
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E115 of 2026
- Procedural Posture
- Miscellaneous Criminal Application / Sentence Review Ruling
- Outcome
- Application allowed.
- Judges
- ["DR Kavedza"]
- Legal Topics
- Section 333(2) CPC Credit for Pre Trial Custody, Sentence Commencement Date, Hoax Offence Under Prevention of Terrorism Act, Revision of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Kabali
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Sentence Review Ruling
Legal Issues
- 1 Whether the trial court failed to consider the applicant's pre-trial custody period when sentencing.
- 2 Whether the sentence should be backdated to the date of arrest under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The applicant had remained in custody from arrest until conviction, and the trial record showed no indication that the magistrate considered that custody period when sentencing. That omission triggered section 333(2) CPC, so the sentence had to run from the date of arrest.
Court Disposition
Application allowed.
Orders
- The sentence imposed by the trial court shall run from 3rd September 2024, the date of the applicant's arrest.
- Orders accordingly.
Full Case Text
Judgment text and source record
1 paragraphs
Kabali v Republic (Miscellaneous Criminal Application E115 of 2026) [2026] KEHC 10181 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10181 (KLR) Republic of Kenya In the High Court at Kibera Miscellaneous Criminal Application E115 of 2026 DR Kavedza, J July 13, 2026 Between Moses Kabali Applicant and Republic Respondent Ruling 1.The applicant was charged and convicted of the offence of perpetrating a hoax contrary to section 26 of the Prevention of Terrorism Act No. 30 of 2012. He was sentenced to pay a fine of (Kshs. 5,000,000) Five Million Kenyan Shillings, in default to serve a term of five (5) years imprisonment. 2.The applicant has filed the present application dated 29th September 2025 seeking sentence review. He contends that the trial court failed to consider the period spent in remand custody before sentencing, contrary to section 333(2) of the Criminal Procedure Code. He therefore urges the Court to revise the commencement date of his sentence. 3.I have considered the application, the grounds advanced, the record and the applicable law. 4.The proviso to section 333(2) of the Criminal Procedure Code imposes a mandatory duty on a sentencing court to consider the period an accused person has spent in lawful custody before sentence. This principle has been affirmed by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR and Bethwel Wilson Kibor v Republic [2009] Eklr, and by the High Court in Vincent Sila Jona & 87 Others v Kenya Prison Service & 2 Others [2021] eKLR. 5.It is therefore mandatory upon every sentencing court to consider the period spent in pre-trial custody unless the law expressly provides otherwise. 6.The record shows that the applicant was arrested on 3rd September 2024 and remained in custody throughout the trial until his conviction on 14th October 2024, having never been released on bond or bail. I have examined the original trial court record and find no indication that the learned trial magistrate took the period spent in remand custody into account when passing sentence. The omission warrants this Court's intervention under section 333(2) of the Criminal Procedure Code. 7.Consequently, the application is merited and is hereby allowed. The sentence imposed by the trial court shall run from 3rd September 2024, being the date of the applicant's arrest, in accordance with section 333(2) of the Criminal Procedure Code, Cap. 75. Laws of Kenya.Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 13TH DAY OF JULY 2026______________D. KAVEDZAJUDGEIn the presence of:Applicant PresentMutuma for the RespondentKarimi Court Assistant