https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8545

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E499 OF 2024** **ELISPHER (ELISHIPHA) MUTHONI………..…………………………….PETITIONER** **VERSUS** **DIRECTOR OF PUBLIC PROSECUTIONS…………........RESPONDENT** **JUDGMENT** 1. In the recent past, ever since the Supreme Court of Kenya pronounced itself in the **Francis Muruatetu & another v Republic [2017] eKLR** case, to the effect that the mandatory nature of death sentence imposed on murder convicts was unconstitutional to the extent that first, it deprives the convict of the right to mitigate and secondly, it deprives the trial court of the judicial discretion to impose appropriate sentence having regard to the circumstances of each case, the High Court has been inundated with application after application in all forms, by way of constitutional petitions, criminal petitions, notices of motion, criminal miscellaneous applications and petitions, from all manner of convicts requesting for resentencing, sentence review, sentence revision, etcetera, etcetera. 2. Judges of the High Court have been at a loss on how to deal with these cases because, no matter how much they try to make decisions explaining the effect of **Muruatetu** decision, the convicts keep innovating grounds that may give them liberty. The convicts have continued to oscillate about every High Court station with all manner of applications and even complained to the Judicial Service Commission, against judges who tried to advise them against filing the same applications for sentence review. That just shows how liberty is sweet and therefore the makers of our 2010 Constitution did not err when they made the right to liberty a fundamental constitutional right, at Article 29, in line with international instruments that Kenya is signatory to, and which instruments form part of the law of Kenya under the Constitution by dint of Article 2(5) and (6) of the Constitution. 3. The convicts, however, do not just come seeking for sentence review or revision or reduction. They often learn from fellow inmates, and courtesy of libraries and paralegal and even legal advisories from prison warders that they are as a matter of law, entitled to the least severe sentence prescribed by law, as espoused in Article 50(2) (p) of the Constitution, which right is part of the many rights to a fair trial guaranteed under Article 50(2) of the Constitution. 4. Importantly, is that prior to the 27th August 2010 when the Constitution of Kenya 2010 was promulgated, bail was a privilege given only to a few offenders. Capital offenders who faced murder, robbery with violence, and treason, among others, were not entitled to be released on bond pending trial or appeal. They had to remain in custody until the end of the trial. 5. Additionally, despite section 333(2) of the Criminal Procedure Code which mandates trial courts to, in imposing term sentences, take into account the period spent in custody by the convicts, subject to section 38 of the Penal Code, which latter section provides a situation where an accused person has escaped from custody, the trial courts have over time ignored this provision and in sentencing, never took into account the period that the convicts spent in custody. And whenever convicts come to the High Court seeking that the Court takes into account that period in computing sentences, while some courts allow the applications, others reject on account of being functus officio and therefore lack of jurisdiction. This is exactly what happened to the petitioner in this case and therefore this court is faced not just with an ordinary constitutional petition but with a petition that seeks to underscore the significance of the right to liberty and how as courts, we may have failed to interpret this right correctly. 6. The petitioner herein Elispher Muthoni was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. She was jointly charged with another, Elizabeth Waithera Mary vide Nairobi High Court Criminal Case No. 68 of 2004. Both accused persons were found guilty of the charge of murder, were convicted and because the 1st accused Elizabeth Waithera Mary was a minor aged 17 years as at the time of committing the offence, she was committed at the President’s pleasure, in accordance with section 166 of the Criminal Procedure Code, while the petitioner herein Elispher Muthoni an adult was sentenced to serve thirty (30) years imprisonment. 7. In her petition which is undated and filed through Langata Women Prison on 26/9/2024, and supported by an affidavit and initiated by way of notice of motion, and which form this court accepts to be not fatal to the petition, noting that the petitioner is acting *prose* and is in incarceration without the help of proper legal advise and assistance, the petitioner pleads that her co-accused and convict was released on President’s Clemency in 2019. She avers that she has the right to approach this Court under Article 22 of the Constitution to seek redress for violation of her constitutional rights. The petitioner’s grievance is that she spent 9 years in custody pending trial and that during sentencing, the trial court did not take into account the period spent in custody as mandated by section 333(2) of the Criminal Procedure Code and she relies on the case of **Ahmad Abolifathi v Republic [2016] eKLR**. 8. The petitioner asserts that her right to the least severe punishment prescribed by law, as guaranteed under Article 50(2) (p) of the Constitution was violated. She asserts that Article 25 ( c) of the Constitution provides that the right to fair trial cannot be limited and that failure to take into account section 333(2) of the CPC violated her right under Article 29(f) of the Constitution as she was left to serve excessive sentence which amounts to inhuman and degrading punishment. Relying on the **Francis Muruatetu and another v Republic** **[2017]** case, the petitioner asserts that this court has jurisdiction to review sentences imposed without mitigation being taken into account. She pleaded while submitting relying on various other decisions such as **William Kitty Okungu v Republic [2018] e KLR** on the effect of **Muruatetu** decision that led to resentencing of murder suspects. 9. The petitioner urges this court to adopt the interpretation that favours the enforcement of rights or fundamental freedom and that this court should make a judicial review order under Article 23 (3) (f) of the Constitution in respect to the petitioner whose sentence did not take into account the period that she spent in custody and compute the sentence taking into account the said period. 10. The petitioner further asserts and submits that Article 51 (1) of the Constitution provides for imprisoned or persons in custody retaining all their rights under the Bill of Rights. She urges this court to take into account the 9 years that she was in custody pending trial and, in her submissions, she stated that she had reformed and was now 54 years old. She did not appeal the conviction and sentence following her conviction in 2011 by Ombijah J. 11. In the supporting affidavit, the petitioner mainly mitigates stating that she is remorseful for the offence that she committed and that she promises never to repeat. That she is a first offender and that she had been in custody for 18 years, as at 2024 when she was filing this petition. That she regrets her actions that cost a life due to anger and lack of self-control. That given a chance, she would never repeat as she has undergone counselling and rehabilitation programs that have positively impacted her towards reformation and is now able to control her anger and temper and be law abiding hence the court should give her a second chance to be reintegrated into society where she can be a role model. 12. Opposing the petition, the respondent filed a replying affidavit sworn on 12th February, 2025 by Edna Ntabo, Principal Prosecution Counsel, annexing a ruling rendered by Chepkwony J in Misc. Criminal Application No. E417 of 2021 dated 17th March, 2022 dismissing the petitioner’s application for resentencing noting that the petitioner’s case was different from the **Muruatetu** case because the Muruatetu case was dealing with mandatory death sentence whereas the petitioner had been sentenced to serve only 30 years imprisonment. The learned Judge found that she had no jurisdiction to review the discretionary sentence imposed by a court of concurrent jurisdiction. 13. Additionally, the respondent annexes copy of an order issued by Mutende L. Judge in **Misc Criminal Application No. E002 of 2023** in which the petitioner herein had sought in her application, that the court considers the period that she had spent in custody pending trial and the learned Judge stated that the gist of the application was alleged non compliance with section 333(2) of the Criminal Procedure Code and that because the sentence was imposed by a court of concurrent jurisdiction, the Judge could not review the sentence imposed. The learned Judge having found that the petitioner had already approached Chepkwony J in **Misc Cr Application No. E417 of 2021** wherein the Judge declined to review the sentence of 30 years imprisonment and held that she had no jurisdiction to determine the matter and dismissed the application, Mutende J struck out, the application for want of jurisdiction. 14. According to the respondent, this court is *functus officio* and devoid of any jurisdiction to entertain the present petition. It was deposed that the petitioner should have taken heed and appealed her sentence to the Court of Appeal for a remedy and that pursuant to Article 165(6) of the Constitution, this Court is devoid of jurisdiction to review the decision of another court of concurrent jurisdiction. It was further contended that the petitioner had not demonstrated how her rights had been violated noting that she was charged, tried and convicted for murder and sentenced to serve a convenient 30 years imprisonment. 15. In the further replying affidavit sworn on 11th June 2025 by the same deponent, the respondent annexes a copy of the Judgment by Ombija J in Criminal Case No. 68 of 2004 wherein the trial court found the petitioner and her co accused, guilty of murder, convicted them and sentenced the petitioner to serve 30 years imprisonment but the co accused having been a minor as at the time of committing the offence was committed at the President’s Pleasure in accordance with section 166 of the Criminal Procedure Code. The respondent prayed that the petition be dismissed with costs. 16. In the written submissions dated 24th September, 2025, the respondent reiterates its depositions and facts surrounding the petition and submits on two issues namely, jurisdiction of this court to hear and determine the petition and whether the petition is merited. 17. On whether this court is possessed of jurisdiction to hear and determine the petition, it is submitted that this court is *functus officio*, as courts of concurrent jurisdiction have already pronounced themselves on the issues raised by the petitioner through the two applications, one for resentencing as espoused in the **Francis Muruatetu** case and another application seeking to invoke section 333(2) of the Criminal Procedure Code. The respondent cited the decisions in **Jeremiah Mwita Range v Republic [2020] e KLR** and **Telkom Kenya Limited v John Ochanda [2014] e KLR** where the courts pronounced themselves on the doctrine of *functus officio* and argued that courts of concurrent jurisdiction cannot review each other’s’ decisions. It is argued in contention that the petitioner’s remedy lay on appeal and not to oscillate around the High Court for reliefs which the High Court has no jurisdiction to grant. 18. On the merits of the petition, it is submitted that the petitioner had not demonstrate d how her constitutionally guaranteed rights were violated by the respondent. A, citing the **Anarita Karimi Njeru v Republic [1979] KLR 154 [1].** Additionally, it is submitted that this court cannot entertain prayers for mitigation as the same was dealt with in the trial court vide Criminal case No. 68 of 2004 before the petitioner was sentenced to serve 30 years in prison. 19. The respondent further relied on **Mumo Matemu v Trusted Society of Human Rights Alliance [2014] e KLR** which underscored the principle espoused in the **Anarita Karimi** case on the necessity to plead constitutional violations with reasonable precision and clarity. The respondent urged this court to dismiss the petition with costs to the respondent. **Analysis and Determination** 1. This court has considered the petition, opposition thereto and submissions for and against the orders. The petition raises the main issue of whether this court has jurisdiction to grant the orders sought in the petition, that it orders that section 333(2) of the Criminal Procedure Code be invoked to take into account the period that the petitioner spent in custody during her trial for murder, in the sentence of 30 years imprisonment imposed by the trial court which was the High Court exercising criminal jurisdiction at Nairobi in Criminal case No. 68 of 2004. 2. As indicated in the factual background above, the petitioner was convicted for murder and sentenced to serve 30 years imprisonment but her co accused who was a minor at the time of committing the offence was sentenced to serve at the president’s pleasure and she was later released through presidential clemency in 2019. The offence took place between 21st and 27th February, 2004 when the petitioner and another, jointly with others not before court murdered Alexander Kungu Wangui, a 21/2 year old baby whom the petitioner’s co accused was the employed care taker and whom the petitioner herein aided her co accused to kill and dispose the body in a toilet. 3. The petitioner did not appeal against conviction or sentence. She later filed an application for resentencing following the Supreme court’s decision in the now famously Muruatetu case but the High Court declined her plea noting that the petitioner had been given a convenient lenient sentence of 30 years only, which was not mandatory death sentence provided for under section 204 of the Penal Code. The petitioner did not give up. 4. The petitioner once again applied to the High Court Criminal Division at Nairobi for consideration of section 333(2) of the Criminal Procedure Code, for consideration of the period that she was in custody, being nine (9) years to be taken into account but the court declined citing the refusal by the court in the resentencing case and declining jurisdiction. That application was struck out in limine. 5. The petitioner is now before this court with a constitutional petition, asserting that her right to fair trial and liberty were violated by her continued serving an excessive sentence yet the Constitution at Article 50(2) (p) guarantees her the least severe punishment provided for in law. She does not challenge her conviction or sentence, she urges that the trial court ought to have taken into account the period that she was in custody pending trial now that she was not on bond, as stipulated in section 333(2) of the Criminal Procedure Code. She maintains that her rights were violated. 6. The petitioner asserts that she has been in prison for now over 20 years including the remand period and has reformed and is extremely remorseful hence she should be released and reintegrated into society as she has been counseled and can never reoffend. She regrets having taken away a life of a child. 7. The respondent on the other hand vehemently opposes the petition contending that this court has no jurisdiction to revisit matters which other courts of concurrent jurisdiction already dealt with and declined to grant the orders to resentence the petitioner or to take into account section 333(2) of the Criminal Procedure Code. The respondent argues that this court is *functus officio* and that the petitioner has not demonstrated that her rights were violated in any way as she was convicted of murder and sentenced to a lenient 30-year prison term. Further, that she cannot ride on her co-accused’s release in 2019 as the latter was a minor committed at the presidential pleasure and she only enjoyed clemency of the president. The respondent maintains that this court cannot exercise supervisory jurisdiction over superior courts who already made decisions on whether or not to interfere with the sentence imposed on the petitioner, now that she was sentenced after mitigating hence this court cannot hear mitigations and rely on them to reduce the sentence. 8. With the above in mind, I now discuss the issues identified for determination. 9. The respondent contends that this petition is barred because the petitioner previously approached the High Court seeking credit for the period spent in remand custody and the application was struck out on the basis that the Court was functus officio. 10. I have considered that objection carefully. The record shows that the earlier Court did not determine whether failure to comply with Section 333(2) of the Criminal Procedure Code violated the petitioner's constitutional rights. The Court declined to entertain the application upon finding that it lacked jurisdiction to revisit the sentence after judgment had been rendered and the fact that judge Chepkwony had dealt with the application on resentencing and dismissed it on account of the petitioner’s case not being similar to the Muruatetu case which dealt with mandatory death sentence. 11. Consequently, the issue presently before this Court is materially different. The petitioner does not seek a reopening of the criminal proceedings. Rather, she seeks a determination whether the failure to account for nine years spent in remand custody resulted in a deprivation of her liberty and therefore, inconsistent with the Constitution. 12. Furthermore, a dismissal founded upon lack of jurisdiction cannot ordinarily be equated with a substantive adjudication of constitutional rights. The constitutional question therefore remains live and justiciable. 13. This Court makes it clear that it is not sitting on appeal against the earlier ruling. Neither is it reviewing or varying the sentence imposed by the trial court in the criminal proceedings in Criminal Case No. 68 of 2004. This Court is exercising its original constitutional jurisdiction to determine whether the petitioner's rights were violated and, if so, what relief is appropriate. Accordingly, I find that the petition is properly before the Court for determination on its merits. 14. On jurisdiction of this Court in constitutional petitions, the petitioner cited Article 165 of the Constitution. The High Court derives its jurisdiction from Article 165 of the Constitution. Under Sub Article 6, the High Court exercise supervisory jurisdiction over subordinate courts and tribunals, bodies, persons or authorities exercising judicial or quasi-judicial authority but not over superior courts and therefore it is correct to say that indeed, this court cannot revisit decisions of courts of concurrent jurisdiction as if it has supervisory jurisdiction over superior courts. 15. Nonetheless, the question before this court is whether this court can make a determination on the constitutionality of failure to comply with section 333(2) of the CPC without running the risk of being accused of sitting on appeal of decisions of courts of concurrent jurisdiction? The answer is yes and I proceed to give reasons below 16. The administration of criminal justice is not measured solely by the convictions secured or sentences imposed on convicts by trial courts. It is equally measured by the fidelity with which courts safeguard the liberty of those who stand before them. Section 333(2) of the Criminal Procedure Code is one of the statutory instruments through which that constitutional duty is discharged. 17. Section 333(2) of the Criminal Procedure Code is couched in mandatory terms that in sentencing, subject to section 38 of the Penal Code, the trial court should take into account the period spent in custody. Therefore, where the period spent in lawful custody pending trial is ignored, the consequences are such that, the that the convicted person is compelled to serve a punishment greater than that authorized by law. Such an outcome is incompatible with a constitutional order founded upon human dignity, liberty and the rule of law. 18. A petition brought pursuant to the constitutional provisions on the right to fair hearing, right to liberty and human dignity must at all times be considered with the constitutional and human rights lens. This is so, considering that Article 259 of the Constitution mandates that the Constitution must be interpreted in a manner that promotes its purposes, values and principles, advances the rule of law and the human rights and fundamental freedoms in the bill of rights; permits the development of the law and contributes to good governance. 19. This petition, in my view, is not just about review of sentence imposed on the petitioner, as contended by the respondent. It is seeking the giving future trial courts a constitutional context and basis for why Section 333(2) must be observed in every case where a term sentence is imposed. 20. As correctly pleaded and asserted by the petitioner, in her limited knowledge of the law and the Constitution, as the petition was likely drafted by a paralegal, the Constitution of Kenya in Article 50(2) guarantees every accused person the right to fair trial, which right cannot be limited. Further, Article 51 guarantees that every person detained, held in custody or imprisoned retains all rights and fundamental freedoms in the Bill of Rights except to the extent that any particular right or fundamental freedom is clearly incompatible with the fact that the person is detained, held in custody or imprisoned. 21. Under Article 29 of the Constitution, every person has the right to freedom and security of the person, which includes among others, the right not to be deprived of freedom arbitrarily or without just cause, detained without trial, except during a state of emergency, in which case the detention is subject to Article 58 and not to be treated or punished in a cruel, inhuman or degrading manner. 22. From my reading of Article 29, the Constitution requires that every day of liberty taken by the State must be justified by law and therefore, no day spent in lawful custody should be rendered invisible by the sentencing process. 23. Accordingly, my appreciation of this petition is not whether or not the earlier courts correctly declined jurisdiction to interfere with the sentence imposed by the trial Judge. What I find to be before me for interrogation, using a constitutional lens, is whether the constitutional implications of the petitioner's continued incarceration yet she was held in custody for 9 years prior to her sentencing to serve 30 years imprisonment has ever been substantively determined by the previous courts that she approached. 24. I acknowledge that not every error in sentencing rises to the level of a constitutional violation and that the constitutional threshold is crossed where the impugned error results in actual deprivation of liberty beyond the period authorized by law. 25. The principle of equal justice and therefore the right to equal protection and benefit of the law demands that all persons be treated equally. In this instance, the failure to comply with Section 333(2) disproportionately affects accused persons who remain in custody because they are unable to secure release on bond or bail. If remand periods are ignored, two persons convicted of the same offence and sentenced to the same term may in reality serve obviously different periods of imprisonment. Such disparity undermines equal protection of the law and equal treatment before our courts. 26. The threat that I observe to criminal sentencing, which limits the constitutional right to liberty, is that, courts often focus on the sentence pronounced rather than the sentence actually served, yet, constitutional liberty is concerned with real liberty and not imaginary liberty. 27. What I find to be significant in this petition is that the petitioner spent nine years in remand custody before conviction. That is not an insignificant period. It clearly illustrates the importance of the existence of section 333(2) of the Criminal Procedure Code and the reason that all trial courts must implement this section. 28. In my view, Section 333(2) is not a discretionary provision for discounting sentence but a constitutional accounting mechanism for liberty already lost. Differently put, it is not that courts are given discretion to exercise and reduce sentences for accused persons who were in remand during trial. The reality is that by being in remand, the accused has already served part of the sentence imposed on the day of sentencing and therefore he or she has paid part of the liberty debt and the law requires that this reality be recognized during sentencing. 29. In my opinion, Section 333(2) is Parliament's recognition of the constitutional reality that a prison term sentence does not begin on the day that it is pronounced by the trial Court, for a convict who remained in custody pending trial, since this convict’s liberty was deprived from the day that the PRISON gates slammed on them. 30. I am further persuaded that the right to liberty is implicated in this section 333(2) of the Criminal Procedure Code because, liberty can be taken away during trial of an accused person not only by unlawful arrest or arbitrary detention but also, when the accused person who is convicted remains imprisoned for a period longer than that which the law permits. 31. It is not lost to this Court that the Constitution at Article 50(2) (p) guarantees every person the right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time and the time of sentencing. Albeit in this case there was no change of punishment, that statement of being entitled to the benefit of the least severe punishment is sufficient to inform every court that where the law provides for a window of liberty as is the case with section 333(2) of the Criminal procedure Code, which is couched in mandatory and not discretionary terms, the courts must enforce that legal requirement. 32. Therefore, on whether failure by a trial court to take into account the period spent by the petitioner herein in lawful pre-trial custody, as required by Section 333(2) of the Criminal Procedure Code, constitutes a violation of the petitioner’s constitutional right to liberty and other attendant rights, my humble opinion is that compliance with this section 333(2) is a constitutional imperative flowing from the right to liberty, dignity, equality before the law and fair trial. This section, I opine, was enacted by Parliament, to ensure that no day spent in lawful custody is ignored and that no person serves a sentence longer than that which the law authorizes. 33. Fidelity to section 333(2) of the Criminal procedure Code is therefore not only a statutory obligation but a constitutional duty owed to every person who is entrusted by the justice system to safeguard personal liberty. 34. This decision should in no way be understood as authorizing constitutional petitions in every sentencing dispute. This Court's intervention in this specific petition is justified because, the alleged error of ommission to take into account the period spent in custody by the petitioner, prior to her being sentenced, directly implicates continued deprivation of her liberty and more importantly, is that this constitutional issue has not previously been determined on its merits by any other court. This limitation protects the doctrine of finality while preserving constitutional accountability in the administration of justice. 35. For the above reasons, this Court finds and holds that the constitutional injury occasioned by non-compliance with Section 333(2) of the Criminal Procedure Code is not the failure to apply a statutory provision per se. The injury lies in the resultant deprivation of liberty beyond that which the law permits. Consequently, where a convicted person remains in custody for a period that would not have been served had the remand period been properly credited, the excess incarceration constitutes an infringement of the right to liberty protected by the Constitution. 36. I reiterate that Section 333(2) of the Criminal Procedure Code is not a mere procedural provision. It is a substantive safeguard enacted to ensure that punishment imposed by a court corresponds only to the sentence authorized by law. Furthermore, the period spent by an accused person in remand custody pending trial is time during which the State has already restrained the individual's liberty through lawful process. Where an accused person has remained in custody pending trial, and has neither absconded, escaped lawful custody, nor violated any bond or bail terms, that period forms part of the total deprivation of liberty arising from the criminal process and must be recognized during sentencing. 37. It follows therefore that any sentencing court that disregards such period spent in custody, imposes a punishment that exceeds what the law contemplates. The result is that the convicted person serves a longer period of incarceration than would have been served had the law been faithfully applied. 38. In this Court's view, therefore, compliance with Section 333(2) is not merely a statutory obligation to be performed in a discretionary manner. It is a constitutional duty anchored upon Articles 28, 29, 50 and 51 of the Constitution. 39. The right to personal liberty demands that every day spent in lawful pre-trial custody be accounted for during sentencing. To ignore that period is to treat as worthless a segment of a human being's life during which the State had already deprived him or her of freedom. 40. Such omission disproportionately affects accused persons who are unable to secure bond or bail and therefore raises concerns regarding equal protection and benefit of the law. Two persons convicted of the same offence and sentenced to the same term should not in reality serve radically different periods of imprisonment merely because one remained in custody pending trial while the other secured release. 41. The Court therefore holds that where a trial court fails to give credit for time spent in lawful pre-trial custody and such omission results in a person serving a period of incarceration longer than that authorized by law, the omission constitutes a violation of the constitutional right to liberty and related protections guaranteed under the Constitution. 42. I further find and hold that the earlier proceedings instituted by the petitioner concerned sentence review and resentencing. The Court declined jurisdiction on the basis of functus officio. It did not determine whether the petitioner's constitutional right to liberty had been violated by the non-compliance with Section 333(2) of the Criminal Procedure Code by the sentencing court. The other court struck out the application seeking to invoke the section in issue. It did not determine the issue on its merits. Accordingly, the issue presently before this Court remains undetermined by any other court of competent jurisdiction. 43. Additionally, albeit the relief sought in the previous proceedings and the present petition arise from the same factual background, the juridical foundation is different. The former application sought sentence adjustment within the criminal proceedings. The present petition alleges violation of constitutional rights arising from alleged excessive deprivation of liberty occasioned by non-compliance with a mandatory statutory safeguard. 44. I am fortified and justified in the above position by the 2023 NCAJ Sentencing Guidelines which provide as follows: ***“12.6 Respect for Human Rights and Fundamental Freedoms:*** ***The sentences imposed must promote, and not undermine, human rights and fundamental freedoms. Whilst upholding the dignity of both the offender (and where relevant, the victim), the sentencing regime should contribute to the broader enjoyment of human rights and fundamental freedoms in Kenya. Sentencing impacts on crime control and has a direct correlation to fostering an environment in which human rights and fundamental freedoms are enjoyed.*** ***Time served in custody prior to conviction*** ***2.3.18 Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.*** ***2.3.19 Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and courts should make an enquiry particularly with unrepresented offenders – for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.*** ***2.3.20 An offender convicted of a misdemeanour and who had been in custody throughout the trial for a period equal to or exceeding the maximum term of imprisonment provided for that offence, should be deemed to have served their sentence and be released immediately.”*** 1. The Court of Appeal in **Ahamad Abolfathi Mohammed & Another v Republic, [supra]** on appeal in a criminal casedid **e**mphasize that failure to give credit for time spent in custody effectively increases the sentence beyond what the law permits. The Court stated as follows, as cited in **Jona & 87 others v Kenya Prison Service & 2 others (Petition 15 of 2020) [2021] KEHC 457 (KLR) (18 January 2021) (Judgment)** ***“It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced must be taken into account in computing the period of the sentence. I associate https://new.kenyalaw.org/akn/ke/judgment/kehc/2021/457/eng@2021-01-18 12 myself with the decision in Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR where the Court of Appeal held that: “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. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “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(2) 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 end that the firstt 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 June 19, 2012.” [Emphasis mine].*** ***36. The same court in Bethwel Wilson Kibor v Republic [2009] eKLR expressed itself as follows:*** 1. ***“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. The appellant told us that as at September 22, 2009 he had been in custody for ten years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”*** 2. In this present matter, 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. Neither was the section mentioned. 3. For the foregoing reasons, this court finds the petition by the petitioner is merited. Neither is it an abuse of court process nor res judicata. I allow the petition s filed and make the following orders and declarations: 4. ***That the period spent in lawful custody pending trial forms part of the total period during which the State has deprived an accused person of their liberty.*** 5. ***That Section 333(2) of the Criminal Procedure Code gives constitutional effect to the rights guaranteed under Articles 28, 29, 50 and 51 of the Constitution.*** 6. ***That failure by a sentencing court to account for such period, where applicable, results in an unlawful enlargement of punishment and constitutes a violation of the right to liberty.*** 7. ***that a violation occurs irrespective of whether the sentence imposed is below the statutory maximum sentence prescribed for the offence.*** 8. ***Specific to this petition, I order that the period spent in custody by the petitioner, Elispher [Elishipha] Muthoni, prior to her being sentenced running from the date of arrest to the day when she was sentenced to serve 30 years imprisonment shall be taken into account in computing the imprisonment term, which the Prisons authorities will establish form her committal warrant file.*** 9. This Court is aware that the orders that this Court has made have a prospective value far beyond the present petitioner and therefore I proceed to issue some practice guidelines to guide sentencing courts in order to give effect to this judgment since the decisions in **Jona & 87 others and the Abolifathi** [supra] cases seem to have been forgotten that every TRIAL SENTENCING COURT shall, before imposing any sentence, expressly: 10. ***ascertain the period that a convict will have served prior to that date of sentencing, taking into account section 38 of the penal Code;*** ***(b) record that remand period in the trial court file;*** ***(c) indicate with clarity that the remand period has been taken into account in imposing the sentence; and*** ***(d) specify the effective commencement date of the sentence or the credit granted.*** 1. In conclusion, it is important to note that the administration of criminal justice is not measured solely by the convictions secured or sentences imposed. It is equally measured by the fidelity with which courts safeguard the liberty of those who stand before them. Section 333(2) of the Criminal Procedure Code is one of the statutory instruments through which that constitutional duty is discharged. Where the period spent in lawful custody pending trial is ignored during sentencing, the consequence may be that a person serves a punishment greater than that authorized by law. Such an outcome is incompatible with a constitutional order founded upon human dignity, liberty and the rule of law. 2. The Constitution of Kenya, 2010 requires that every day of liberty taken by the State be justified by law. No day spent in lawful custody should be rendered invisible by the sentencing process. 3. This Judgment shall be served on all Judges and Magistrates exercising original criminal jurisdiction to provide a reminder on sentencing. 4. A copy of the judgment to be expeditiously served on the Commissioner General of Prisons and the Officer in Charge, Nanyuki Women Prison where the petitioner is currently held to endorse on the petitioner’s committal warrant and give effect to this Judgment. 5. I make no orders as to costs. 6. This file is closed. **Dated, Signed and Delivered virtually at Nairobi this 15th Day of June, 2026** **R.E. ABURILI** **JUDGE**