https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9864

Kabui v Republic (Miscellaneous Criminal Application E027 of 2025) [2026] KEHC 9864 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEHC 9864 (KLR) Republic of Kenya In the High Court at Nakuru Miscellaneous Criminal Application E027 of 2025 AM Hassan, J July 6, 2026 Between Stephen Ndungu Kabui Applicant and Republic Respondent (Being a Miscellaneous Criminal Application for computation of sentence to take into account the period spent in remand custody pursuant to Section 333(2) of the Criminal Procedure Code, arising from conviction and sentence in Molo CM Criminal Case No. E629 of 2023) Ruling A. Introduction and Background 1.Before this court is a miscellaneous criminal application by the Applicant seeking a re-computation of his sentence pursuant to Section 333(2) of the Criminal Procedure Code, so as to take into account the period spent in remand custody prior to conviction and sentencing in Molo CM Criminal Case No. E629 of 2023. 2.The Applicant was charged with trafficking in narcotic drugs contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. 3.The particulars of the offence were that on the 6th day of March, 2023, at Elburgon Township, Elburgon Location in Molo Sub-County within Nakuru County, he trafficked by conveying narcotic drugs namely cannabis (bhang) weighing 5,250 grams which was valued at Kshs.157,000/= in contravention of the said Act. 4.Judgment was delivered by Hon. E.G. Nderitu on 6th December, 2023. The Applicant pleaded guilty to the charge. Upon considering his mitigation, the learned trial magistrate sentenced him to pay a fine of Kshs.200,000/= in default to serve four (4) years imprisonment. The court further ordered that the 5.25 kilograms of cannabis be destroyed. 5.Through a Notice of Motion forwarded to court on 19th February, 2025, the Applicant sought a fresh computation of his sentence to include the period spent in remand custody, contending that such computation ought to run from the date of his arrest. 6.The matter came up before this court on 10th June, 2026. The court observed that based on the sentence imposed, the Applicant was due to complete his sentence on or about 6th August, 2026, being less than two months from that date. The court consequently directed parties to file submissions within seven (7) days. 7.The Office of the Director of Public Prosecutions indicated that it would not be filing submissions. The Applicant filed his submissions on 19th June, 2026. 8.Having considered the application, the record and the submissions on record, the court finds that a single issue arises for determination. 9.This court is properly seized of the matter pursuant to Articles 23, 50(2)(q), 165(6) and 165(7) of the Constitution of Kenya, as read together with Sections 362 and 364 of the Criminal Procedure Code, which confer upon the High Court supervisory and revisionary jurisdiction over subordinate courts. B. Issue For Determination 10.The sole issue for determination is; Whether the Applicant is entitled to a review and re-computation of his sentence under Section 333(2) of the Criminal Procedure Code, to take into account the period spent in remand custody. C. Analysis On The Issue For Determination 11.Section 333(2) of the Criminal Procedure Code, provides, “Subject to the provisions of Section 38 of the Penal Code, 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 sub section (1) has prior, to such sentence shall take account of the period spent in custody.” 12.The foregoing provision imposes a mandatory obligation upon a sentencing court to take into account the period already spent in lawful custody before sentence is pronounced. The purpose of the provision is to ensure that an accused person does not serve a period of incarceration that exceeds the punishment intended by law. 13.The Judiciary Sentencing Policy Guidelines further underscores this obligation in the following terms; “The provision to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.” 14.The court has carefully perused the charge sheet, the proceedings and the material placed before it. The charge sheet indicates that the offence was committed on 6th March, 2023, and that the Applicant was arrested on the same date. The record further demonstrates that judgment and sentence were subsequently delivered on 6th December, 2023. 15.From the foregoing, it is evident that the Applicant remained in custody from 6th March, 2023, until 6th December, 2023, when sentence was imposed. This translates to a period of approximately nine (9) months, spent in remand custody before conviction and sentence. 16.The court notes that while the learned trial magistrate imposed a sentence of a fine of Kshs. 200,000/= in default four (4) years imprisonment, there is nothing on the record demonstrating that the period already spent in custody was expressly taken into account before the sentence was pronounced. 17.The significance of Section 333(2) of the Criminal Procedure Code is that it seeks to prevent a convicted person from serving a period of incarceration that exceeds the punishment intended by law. The proviso thereto imposes a mandatory obligation upon a sentencing court to consider and credit any period already spent in custody before sentence is imposed. The requirement is neither discretionary nor procedural; it is a substantive safeguard intended to ensure that punishment remains proportionate to the offence committed. 18.This court is guided by the pronouncement in the case of Bethwel Wilson Kibor vs. Republic (2009) eKLR where the court stated as follows: “By Proviso to section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into 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 10 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.” 19.This court is further guided by the decision of the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR where the court stated: “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 spent in custody and still order the sentence to run from the date of conviction because that amounts to ignoring altogether the period already spent in custody.” 20.The Court of Appeal in the foregoing decision emphasized that compliance with Section 333(2) of the Criminal Procedure Code requires more than a mere acknowledgment of the period spent in custody. The sentencing court must demonstrate that the period has been factored into the sentence imposed. Any other interpretation would render the proviso to Section 333(2) nugatory and would occasion an injustice to an accused person who remained in custody during the pendency of the trial. 21.The principle emerging from Bethwel Wilson Kibor vs. Republic (2009) Eklr and Ahamad Abolfathi Mohammed & Another v Republic (2018) eKLR is that a court must expressly demonstrate that it has taken into account the period spent in custody prior to sentence. Merely stating that a sentence commences from the date of conviction does not satisfy the requirements of Section 333(2) of the Criminal Procedure Code. Failure to account for the remand period may result in an offender serving a sentence longer than that lawfully intended. 22.In the present case, the Applicant has established from the record that he remained in custody from 6th March, 2023 until 6th December, 2023, a period of approximately nine (9) months. This court is satisfied that the said period ought to be credited towards the sentence imposed upon him. To hold otherwise would defeat the clear provisions of Section 333(2) of the Criminal Procedure Code and the sentencing principles articulated in the Judiciary Sentencing Policy Guidelines. 23.This is particularly significant given that when this matter came before the court on 10th June, 2026, the Applicant was due to complete his sentence on or about 6th August, 2026. The interests of justice therefore require that the sentence be re-computed in strict compliance with Section 333(2) of the Criminal Procedure Code by factoring in the period of approximately nine (9) months already spent in remand custody. 24.The applicant spent in remand custody from 6th March, 2023 to 6th December, 2023, being approximately nine (9) months, a duration which ought to have been considered during sentencing. The applicant only seeks to have the duration he spent in custody be taken into account which is his legal entitlement in my considered view. D. Disposition 25.This court finds merit in the application and allows this appeal. 26.In the circumstances and taking into account that the applicant has been in remand custody from 6th March, 2023 to 6th December, 2023, I reduce the sentence to the period served as at 5th July, 2026. 27.He is accordingly, set free forthwith, unless otherwise lawfully held.It is so ordered. DATED, SIGNED AND DELIVERED AT NAKURU HIGH COURT ON 6TH JULY, 2026HON. JUSTICE ABDI M HASSAN, OGW