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Court of AppealPartially AllowedCriminal Appeal (not stated in judgment)

Itiriani v Republic (Criminal Appeal 116 of 2019) [2023] KECA 929 (KLR)

Court of Appeal of Kenya
28 July 2023
FSF. SichaleFOF. OchiengLAL. Achode
2,357 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed judges must cut sentences by time already spent in remand custody under section 333(2) of the Criminal Procedure Code.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Eldoret against the judgment of S M Githinji J of the High Court, delivered on 13th November 2018, in which the appellant was convicted of the murder of Peter Elar Eregai contrary to sections 203 and 204 of the Penal Code and sentenced to 30 years imprisonment. The appeal was confined to sentence only, on the single ground that the trial court failed to comply with section 333(2) of the Criminal Procedure Code by failing to take into account the approximately 7 years, 10 months and 25 days the appellant had spent in remand custody from his arrest on 17th January 2011 until conviction and sentencing. The prosecution, through Mr Makori, countered that the trial court had considered the custody period in mitigation and that the sentence was commensurate with the offence. Relying on its prior decision in Ahamad Abolfathi Mohammed & Another v Republic, the Court held that compliance with section 333(2) requires more than a bare statement that mitigation was considered; the sentence must be reduced proportionately by the period already spent in custody. Since the sentencing remarks of the trial judge did not indicate that the sentence would run from the date of initial incarceration, the Court found non-compliance. The Court allowed the appeal, reduced the 30-year sentence by the period spent in pre-conviction custody, and directed that the order be served on the Officer-in-charge of the G.K Prison for compliance. No costs order was made. The decision binds subordinate courts and the High Court to give substantive effect to the proviso to section 333(2) when computing custodial sentences.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge, in computing the sentence, complied with section 333(2) of the Criminal Procedure Code by taking into account the period the appellant spent in custody before conviction and sentencing

Key legal issues

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01

Compliance with section 333(2) of the Criminal Procedure Code in sentencing

Holding

The trial judge did not comply with section 333(2); the sentence must be reduced by the period spent in pre-conviction custody

Reasoning

Section 333(2) mandatorily requires that where a sentenced person was held in custody prior to sentence, the sentence shall take account of that period. The trial court's sentencing remarks stated only that mitigation was considered and did not indicate that the sentence would run from the date of initial incarceration. Following Ahamad Abolfathi Mohammed, such silence amounts to ignoring the custody period. The court therefore reduced the 30-year sentence by 7 years, 10 months and 25 days.

p. 5

Legal principles established

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  • Where an accused was held in custody prior to sentence, the court is obliged to take that period into account so that the sentence is reduced proportionately; a mere statement that mitigation was considered without ordering the sentence to run from the date of initial incarceration amounts to ignoring the custody period

Court orders

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  1. 1.The sentence imposed by the trial judge is reduced by 7 years, 10 months and 25 days that the appellant spent in custody before he was convicted and sentenced
  2. 2.This order shall be served on the Officer-in-charge of the G.K Prison where the appellant is serving sentence for compliance

The bench

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One judgment of the whole court — no separate or dissenting opinions.

FS
majority
FO
majority
LA
majority
On appeal from
High Court of Kenya at Eldoret
not stated in judgment
Jurisdiction invoked
First appeal to the Court of Appeal under the Criminal Procedure Code (specific provision not stated in the judgment)

Relief refused

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Full setting aside of the 30-year sentence

The appeal was against sentence only to the extent of computation; the court varied rather than quashed the sentence

p. 5

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, we order that the sentence imposed by the trial judge be and is hereby reduced by 7 years, 10 months and 25 days that the appellant spent in custody before he was convicted and sentenced.
p. 5Final orders - reduction of sentence for pre-conviction 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.
p. 4Meaning of taking into account custody period under section 333(2)
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.
p. 4Mandatory nature of section 333(2) proviso

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Itiriani v Republic (Criminal Appeal 116 of 2019) [2023] KECA 929 (KLR)", Case Analysis (2023). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/929/eng@2023-07-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.