Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment as provided (arises from Court of Appeal Criminal Appeal Number 46 of 2016, Kisumu)· [2025] KECA 793 (KLR)

Pamba v Republic (Criminal Application E003 of 2025) [2025] KECA 793 (KLR)

Court of Appeal of Kenya
9 May 2025
AMAsike MakhandiaHOH. A. OmondiLKL. Kimaru
1,205 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal ruled it cannot re-open a sentence it already decided, confirming remand-time credit under section 333(2) applies only when the trial court first sentences.

What this practically means

#

Executive summary

#
The applicant was convicted of murder by the High Court at Busia and sentenced to death, then mandatory. On appeal, the Court of Appeal at Kisumu dismissed the appeal on conviction but reduced the sentence to 25 years' imprisonment, applying the Supreme Court's decision in Francis Karioko Muruatetu & another v Republic on the unconstitutionality of the mandatory death sentence. The applicant then sought review before the High Court at Kisumu, asking it to deduct the period spent in remand custody from the 25-year term pursuant to section 333(2) of the Criminal Procedure Code. The High Court declined, holding it lacked jurisdiction to revisit a sentence imposed by a superior court, citing Grace Sarapay Wakhungu & 2 others v Republic. The applicant then moved the Court of Appeal on the same prayer. In this ruling, the Court accepted that taking remand time into account is a mandatory requirement at sentencing, as articulated in Bukenya v Uganda, but held that section 333(2) is confined to the initial sentencing stage and is a matter for the trial court; it does not extend to an appellate court that has already enhanced or reduced a sentence. The Court further held that a lower court cannot review a decision of a higher court, that the applicant's remedy against the High Court's dismissal was an appeal, and that once the Court of Appeal determines an appeal it becomes functus officio. The application was accordingly dismissed. No costs order was recorded.

Key legal issues

#
01

Whether the Court of Appeal can review its own sentence to account for remand period under section 333(2) of the Criminal Procedure Code

Holding

No. The duty to take account of pre-trial custody falls on the trial court at initial sentencing; an appellate court that has varied a sentence cannot revisit it, and the court is functus officio.

Reasoning

The court accepted that remand time is a mandatory consideration at sentencing, per Bukenya v Uganda, but distinguished the applicant's situation: the 25-year term was imposed by the Court of Appeal acting as an appellate court, not a trial court. The provision operates at the initial sentencing phase and does not extend to a court after an appeal has been adjudicated. The applicant's grievance against the High Court's dismissal should have been pursued by appeal. Once the Court of Appeal determines an appeal it becomes functus officio, so the application was incompetent and devoid of merit.

p. 3

Legal principles established

#
  • Section 333(2) of the Criminal Procedure Code applies only during the initial sentencing stage by the trial court and does not extend to an appellate court that has enhanced or reduced a sentence on appeal
  • A lower court has no jurisdiction to review a decision of a higher court
  • Once the Court of Appeal makes any determination in an appeal, it becomes functus officio

Court orders

#
  1. 1.The applicant's application for review of sentence is dismissed

Authorities

#

Legislation

  • Penal CodeSection 203 as read with Section 204
  • Penal CodeSection 38
  • Criminal Procedure CodeSection 333(2)

Cases cited (3)

  • Francis Karioko Muruatetu & another v Republic
    [2017] eKLR
  • Grace Sarapay Wakhungu & 2 others v Republic
    Nairobi Criminal Appeal Number E039 of 2022
  • Bukenya v Uganda
    (Criminal Appeal No. 17 of 2010) [2012] UGSC 3
On appeal from
High Court of Kenya at Kisumu
Miscellaneous Criminal Application Numbers E003 and E015 of 2023
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over a sentence it previously imposed; the application invokes section 333(2) of the Criminal Procedure Code

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Pamba v Republic (Criminal Application E003 of 2025) [2025] KECA 793 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (arises from Court of Appeal Criminal Appeal Number 46 of 2016, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/793/eng@2025-05-09

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