Itiriani v Republic (Criminal Appeal 116 of 2019) [2023] KECA 929 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Compliance with section 333(2) of the Criminal Procedure Code in sentencing
The trial judge did not comply with section 333(2); the sentence must be reduced by the period spent in pre-conviction custody
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.
Legal principles established
#- 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
#- 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.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
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
No costs order made in the judgment
Quotable passages
#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.
“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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.