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Court of AppealPartially AllowedCriminal Appeal (not numbered on the face of the judgment)

Omukhunya v Republic (Criminal Appeal 62 of 2020) [2025] KECA 237 (KLR)

Court of Appeal of Kenya
13 February 2025
HOHannah OkwenguHOH. A. OmondiJNJoel Ngugi
1,183 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that time spent in remand custody must reduce a prison sentence, backdating Omukhunya's 15-year term to his 2017 arraignment.

What this practically means

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Executive summary

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The appellant, Charles Omukhunya, was convicted by the Senior Resident Magistrate's Court at Butere of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and sentenced to 15 years imprisonment. His first appeal to the High Court against both conviction and sentence was dismissed. Before the Court of Appeal, the appeal was against sentence only, on the single ground that the High Court erred in failing to consider the time the appellant had spent in custody pending trial. The respondent conceded the appeal, accepting that section 333(2) of the Criminal Procedure Code requires the period spent in remand during trial to be included in the computation of the sentence. The Court held that the appeal did not challenge the legality of the 15-year sentence itself, which was lawful, but that the trial court erred in not accounting for the appellant's custody from his arraignment on 27th November 2017 until conviction and sentence on 3rd September 2018. Relying on its earlier decision in Ahamad Abolfathi Mohammed and Bethwel Wilson Kibor, and on the Judiciary Sentencing Policy Guidelines, the Court reaffirmed that 'taking into account' pre-sentence custody means reducing the sentence proportionately by that period; a mere statement that the period was considered, while the sentence runs from conviction, amounts to ignoring it. The Court of Appeal allowed the appeal to the extent that the 15-year sentence runs from 27th November 2017. The judgment was delivered at Kisumu by Okwengu, Omondi and Ngugi, JJA, as a single unanimous judgment.

Questions the Court framed

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

  1. 1.Whether the trial court was obliged under section 333(2) of the Criminal Procedure Code to take into account the period the appellant spent in custody pending trial when sentencing
  2. 2.From what date the 15-year sentence should commence

Key legal issues

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01

Mandatory application of the proviso to section 333(2) of the Criminal Procedure Code

Holding

The trial court was obliged to take into account the period the appellant spent in remand custody before sentencing; failure to state that the sentence took account of that period meant it was ignored.

Reasoning

The trial court's sentencing remarks made no reference to the period spent in custody nor to when the sentence was to commence. Following its own earlier decision in Ahamad Abolfathi Mohammed and the decision in Bethwel Wilson Kibor, the Court held that custody time must proportionately reduce the sentence. The appellant was in custody from arraignment on 27th November 2017 until conviction and sentence on 3rd September 2018, so the sentence must run from the date of arraignment.

p. 3
02

Meaning of 'taking into account' the period spent in custody

Holding

'Taking into account' custody time means considering it so that the imposed sentence is reduced proportionately; a mere recital that the period was considered, coupled with an order that the sentence run from conviction, amounts to ignoring it.

Reasoning

Adopting its reasoning in Ahamad Abolfathi Mohammed & Sayed Mansour Mousavi v Republic, the Court explained that the proviso introduced in 2007 gives courts power to include pre-sentence custody in the computation of the sentence. Merely stating that the period was considered while ordering the sentence to run from the date of conviction ignores that period altogether. The Judiciary Sentencing Policy Guidelines reinforce this obligation, since failure to do so results in excessive punishment disproportionate to the offence.

p. 2

Legal principles established

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  • Where an accused was held in custody prior to sentencing, section 333(2) of the Criminal Procedure Code obliges the sentencing court to take that period into account, which means reducing the imposed sentence proportionately by the period already spent in custody; it is not enough for a court to merely state that it has taken the period into account while ordering the sentence to run from the date of conviction.

Court orders

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  1. 1.The appeal against sentence allowed to the extent that the 15-year sentence of imprisonment shall run from 27th November 2017, the date the appellant was arraigned in court

The bench

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

HO
majority
HO
majority
JN
majority
On appeal from
High Court
null
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (appeal against sentence only; specific provision not stated in the judgment)

Relief refused

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Any challenge to the legality or quantum of the 15-year sentence

The appeal did not question the sentence itself, which was lawful; only the commencement date was in issue

p. 1

Costs

No costs order was 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.

It is clear that the period during which an accused has been held in custody before being sentenced must be taken into account in meting out the sentence.
p. 2Mandatory consideration of pre-sentence 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. 2Meaning of taking custody period into account
we find merit in this appeal to the extent that the sentence imposed of 15 years should run from the date the appellant was arraigned in court, being 27th November 2017.
p. 3Final orders - commencement of sentence

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Omukhunya v Republic (Criminal Appeal 62 of 2020) [2025] KECA 237 (KLR)", Case Analysis (2025). Criminal Appeal (not numbered on the face of the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/237/eng@2025-02-13

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