https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9449

**Republic Of Kenya** **In The High Court Of Kenya At Mombasa** **Misc. Criminal Application No. E108 of 2025** **Raphael Titus *alias* Raph.……….……………………..…………………..…………Applicant** **Versus** **Republic…………………………………………………………..……………….…Respondent** **Ruling** 1. The Applicant was charged and convicted with the offence of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006. He was sentenced to fifteen (15) years’ imprisonment. He subsequently appealed to this Court and the appeal was dismissed on 11 January 2024. He has now moved this court through an undated application seeking revision of his sentence to factor in the pre-conviction period spent in remand pursuant to the provisions of Section 333(2) of the Criminal procedure Code. 2. Section 333 (2) of the Criminal procedure Code provides as follows: *Subject to the provisions of section 38 of the Penal Code (*[*Cap. 63*](https://new.kenyalaw.org/akn/ke/act/1930/10)*) 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.* 1. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that: *The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:* *Time already spent in prison by the convict…* 1. The Court has examined the record of the trial court which shows that the Applicant was arrested on 12 August 2021 and he remained in custody throughout the trial until he was sentenced to serve a custodial sentence of fifteen (15) years. The trial court record further indicates that in meting out the sentence, the court indicated, *“The mitigation is taken into consideration and the time the accused has been in custody. The accused person is sentenced to serve fifteen (15) years’ imprisonment.”* There is no copy of the warrant of commitment in the trial court file to ascertain the correct date from which the imposed sentenced was to run from. 2. It is pertinent that a trial court indicates the sentence commencement date upon the issuance of a sentence or that the sentence shall take into account the period already spent in pre-conviction custody. This is to avoid unnecessary applications to this Court pursuant to Section 333(2) of the Criminal Procedure Code. It is my finding that the trial court failed in this regard. Even though the sentence indicates that the time the accused had spent in custody had been taken into consideration, the trial court imposed a sentence of fifteen (15) years without reducing the period spent in custody. I am guided by the Court of Appeal’s determination in ***Ahamad Abolfathi Mohamed & another [2018] eKLR*** as follows: 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(s) 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 find that the first 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 19th June 2012.” 1. Consequently, pursuant to the provisions of Section 332(2) of the Criminal Procedure Code, it is hereby ordered that the period spent in custody between 12 August 2021 and 29 July 2022 be taken into account in the Applicant’s sentence. **Ruling Dated and Delivered Virtually this 2nd day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Nabil M. Orina** **Judge** **In the Presence of:** ***The Applicant*** ***Hamza – Court Assistant***