https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10991

Terer v Republic (Criminal Miscellaneous Application E038 of 2026) [2026] KEHC 10991 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10991 (KLR) Republic of Kenya In the High Court at Kericho Criminal Miscellaneous Application E038 of 2026 JC Mutai, J July 16, 2026 Between Weldon Kiprono Terer Applicant and Republic Respondent Ruling 1.The Applicant filed an undated Application seeking an order that this Court reviews his sentence pursuant to Section 333(2) of the Criminal Procedure Code. He was charged with the offence of causing grievous harm contrary to Section 234 of the Penal Code. After full trial, he was sentenced to 20 years' imprisonment. He appealed against the sentence to this Court, and in Criminal Appeal No. E028 of 2021 the sentence was reduced to 10 years' imprisonment. 2.The Applicant contends that although he remained in custody for a period of one (1) year before he was sentenced, that period was not taken into account when the sentence was imposed, nor when it was reduced to 10 years on appeal. He therefore prays that the Court reviews the sentence in accordance with Section 333(2) of the Criminal Procedure Code. 3.Section 333(2) of the Criminal Procedure Code provides:1.“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 on which it was pronounced… 2.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.” 3.Analysis and Determination 4.The import of the proviso to Section 333(2) is that where an accused person has remained in custody before sentence, the sentencing court is obligated to take that period into account in determining the appropriate sentence. The provision does not necessarily require the court to deduct the period spent in custody arithmetically from the sentence imposed. What is required is that the record demonstrates that the court considered the period spent in remand before arriving at the final sentence. 5.The State opposed the Application on the ground that this matter had already been determined on appeal and that the Court is accordingly functus officio. The State submitted that if the Applicant was dissatisfied with the manner in which his sentence was computed, his recourse lay with a higher court, and questioned why the point had not been raised during the hearing of the appeal itself rather than by way of a subsequent application. 6.The State submitted that the Application amounts to re-litigating a matter that is already concluded, and urged the Court to dismiss it. 7.I have carefully perused the proceedings and the sentencing remarks of the trial court. The Applicant was arrested on 18th February 2021 and was held in custody during the pendency of the trial until 25th October 2021, when he was sentenced. That was a period of 8 months and 7 days, and not the one year contended by the Applicant. 8.Having established the actual period the Applicant spent in custody prior to sentencing, this Court turns to whether that period was taken into account when it reduced the sentence from 20 years to 10 years in Criminal Appeal No. E028 of 2021. No jurisdictional bar arises here: it is this Court, the same court that pronounced the sentence now under challenge, that is being asked to ensure its own judgment complied with a mandatory statutory obligation. The doctrine of functus officio operates to prevent a court from reopening the substantive merits of a matter it has already determined; it does not immunise a sentence from correction where the sentencing court is shown to have overlooked the mandatory proviso to Section 333(2) of the Criminal Procedure Code. That proviso is couched in mandatory, and not discretionary, terms, and a failure to comply with it renders the resulting sentence irregular to the extent of the omission. This Court accordingly has jurisdiction to entertain the Application. 9.I have perused the judgment delivered in Criminal Appeal No. E028 of 2021. The judgment is silent on the question of the period the Applicant spent in custody prior to his conviction and sentencing; it neither records that this period was considered, nor gives any reason for declining to account for it. Given that silence, and the mandatory character of Section 333(2), I am unable to find that this Court, in reducing the sentence to 10 years, in fact discharged its statutory obligation to take that period into account. The Application, to this limited extent, succeeds. 10.As found in paragraph 7 above, the period in question is 8 months and 7 days, running from the Applicant's arrest on 18th February 2021 to his conviction and sentencing on 25th October 2021, and not the one year contended by the Applicant. In accordance with the interpretation of Section 333(2) adopted in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, “taking into account” that period means it must be given practical effect, whether by proportionate reduction of the term or by directing that the sentence commence from the date of arrest rather than the date of sentencing. The appropriate and least disruptive correction, given that this Court has already reduced the sentence to 10 years on its merits, is to direct that the 10-year term be computed as running from the date of the Applicant's arrest. 11. Disposition 12.For the foregoing reasons, I find and hold as follows:(a).This Court has jurisdiction to entertain the Application, notwithstanding the earlier and final determination of Criminal Appeal No. E028 of 2021, since what is sought is correction of a mandatory statutory omission and not a reopening of the merits of that appeal;(b).The Application succeeds in part: the Applicant was held in custody for a period of 8 months and 7 days, and not the one year contended;(c).The sentence of 10 years' imprisonment imposed in Criminal Appeal No. E028 of 2021 shall be computed as running from 18th February 2021, being the date of the Applicant's arrest, in compliance with Section 333(2) of the Criminal Procedure Code; DELIVERED AT KERICHO ON 16TH JULY 2026CHELANGAT MUTAIJUDGE16/7/2026In the presence of;Applicant – Weldon Kiprono TererC/A Irene Chelang’at