https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11308

Ngole & another v Republic (Criminal Revision E031 of 2026) [2026] KEHC 11308 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KEHC 11308 (KLR) Republic of Kenya In the High Court at Malindi Criminal Revision E031 of 2026 M Thande, J July 24, 2026 Between Tsuma Machache Ngole 1st Applicant Changawa Karisa Kombe 2nd Applicant and Republic Respondent Ruling 1.By their undated application, the Applicants seek that the period they spent in remand custody be considered as part of their sentence. The Applicants were convicted of the offence of breaking into a building and committing a felony contrary to Section 306(a) as read with Section 306(b) of the Penal Code, in Kilifi Criminal Case No. E012 of 2024. They were sentenced to 4 years imprisonment. 2.The Respondent opted not to file any response to the Application. 3.Section 333(2) of the Criminal Procedure Code provides as follows:Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 4.The proviso to Section 333(2) of the Criminal Procedure Code requires the court while sentencing, to take into account the period an accused person has spent in custody pending trial. 5.In the case of Bethwel Wilson Kibor v Republic [2009] eKLR, the Court of Appeal had this to say about the said proviso:The incident took place way back in 1999. The appellant was promptly arrested and taken to court. There were long adjournments due to transfers and/or changes of trial Judges resulting in long incarcerations of the appellant. 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. 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.The appellant told us that as at 22nd September, 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. 6.Flowing from the above authority, it is clear that a trial court must take into account the period spent in custody pending trial, and state so, when imposing sentence. 7.The record shows that the Applicants were arrested on 5.1.24 and were convicted on 4.8.25. From the record, there is no mention by the trial court that the period that the Applicants had spent in custody pending trial, was taken into account when sentencing them. This is a serious omission on the part of the trial court, as it amounts to non-compliance with an express statutory provision. 8.The Court notes that the 1st Applicant was released on bond on 11.1.24 but absconded on 27.3.24. He was thereafter arrested, and on 17.7.24, his bond was cancelled. 9.The Application is allowed on terms that the 4 year sentence imposed upon the Applicants shall run from 5.1.24, the date of their arrest. However, the period from between 11.1.24 when he was released on bond and 15.7.24 when he was arrested, will not be excluded from the 1st Applicant’s sentence. DATED AND DELIVERED IN MALINDI THIS 24TH DAY OF JULY 2026.............M. THANDEJUDGE