https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10711

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **CRIMINAL MISCELLANEOUS APPLICATION NO. E073 OF 2026** **VINCENT MARAGA MATUNDURA...................................APPLICANT** **VERSUS** **DIRECTOR OF PUBLIC PROSECUTIONS.....................RESPONDENT** **RULING** 1. Before this Court is an undated Notice of Motion in which the Applicant seeks orders that this Court do direct a fresh computation of his sentence to take into account the period he spent in remand custody and that the sentence be deemed to run from the date of his arrest. 2. The application is supported by the Applicant's affidavit in which he depones that he was charged with the offences of vandalism of energy installation and infrastructure contrary to Section 168(4)(b) of the Energy Act and unauthorized disconnection of street light contrary to Section 168(10) of the Energy Act. Upon conviction, he was sentenced to serve twelve (12) months' imprisonment. He contends that although he remained in remand custody during the pendency of his trial, the trial Court did not take that period into account when imposing sentence. He therefore prays that his sentence be computed from 30th April 2025, being the date of his arrest and remand. 3. Learned Prosecution Counsel informed the Court that the application is not opposed. 4. The issue falling for determination is whether the Applicant is entitled to have the period spent in lawful custody before conviction taken into account in computing his sentence. 5. The law on the issue is now well settled. Section 333(2) of the Criminal Procedure Code, Cap. 75 Laws of Kenya provides: *"Subject to the provisions of section 38 of the Penal Code, every sentence shall be deemed to commence from and include the whole of the day of the date on which it was pronounced... Provided that where the person sentenced has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody."* 1. The proviso to Section 333(2) is couched in mandatory terms. It imposes a duty upon every sentencing Court to consider and give credit for the period an accused person has spent in pre-trial custody. The requirement is not merely to acknowledge that an accused had been in custody but to ensure that the custodial sentence imposed reflects that period. Failure to do so results in an offender serving a longer sentence than that contemplated by law. 2. The Court of Appeal emphatically settled this principle in **Ahamad Abolfathi Mohammed & Another v Republic** **[2018] eKLR**, where it 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 merely to state that it has taken the period into account while ordering the sentence to run from the date of conviction."* 1. Similarly, in **Bethwel Wilson Kibor v Republic** **[2009] eKLR**, the Court of Appeal held that a sentencing Court is under a legal obligation to comply with Section 333(2) of the Criminal Procedure Code by giving credit for the period an accused person spent in custody before sentence. 2. The same principle is reinforced by the **Judiciary Sentencing Policy Guidelines, 2023**, paragraph 7.10, which provides that where an offender has spent time in custody before sentence, the Court must take that period into account in determining the sentence to be served so as to avoid imposing a punishment that is excessive or disproportionate. 3. From the material placed before this Court, the Applicant was arrested and remanded on **30th April 2025** and thereafter sentenced to twelve (12) months' imprisonment. The Prosecution has not disputed those facts and has expressly indicated that it does not oppose the application. 4. In the circumstances, and in order to give full effect to the mandatory provisions of Section 333(2) of the Criminal Procedure Code and the binding decisions of the Court of Appeal, I am satisfied that the application is merited. 5. Accordingly, the Notice of Motion is allowed and I make the following orders: 6. The sentence of twelve (12) months' imprisonment imposed upon the Applicant shall be recomputed in accordance with section 333(2) of the Criminal Procedure Code. 1. The Applicant shall be accorded full credit for the period spent in lawful custody before sentence. 2. For avoidance of doubt, the sentence shall be deemed to have commenced on **30th April 2025**, being the date on which the Applicant was first remanded in custody in connection with the offence. 3. The Officer in Charge of the prison where the Applicant is held shall forthwith recalculate the Applicant's release date in accordance with this order, unless he is otherwise lawfully held. It is so ordered. **DATED, SIGNED AND DELIVERED AT ELDORET THIS 14TH DAY OF JULY 2026.** **A.K. NDUNG’U JUDGE** Top of Form Bottom of Form