Nyabando alias Kundo v Republic (Criminal Appeal 279 of 2019) [2025] KECA 1025 (KLR)
The bottom line
#Kenya's Court of Appeal ordered a prisoner's immediate release because courts must count time spent in remand custody towards a sentence.
What this practically means
#Executive summary
#Key legal issues
#Mandatory consideration of pre-conviction custody under section 333(2) CPC
The trial court erred in sentencing without factoring in the appellant's remand custody from first arraignment to approval of surety, and the appellate court corrected the sentence accordingly
The court relied on the Supreme Court's decision in Republic v Mwangi (ISLA, Amicus Curiae) and on Momanyi v Republic, both affirming that section 333(2) obliges sentencing courts to deduct time spent in remand custody. The trial court's sentencing remarks made no reference to remand time, which was common ground. The remand period ran from 10th October 2012 (first arraignment) to 3rd April 2013 (approval of the surety), approximately six months, which had to be computed as part of the sentence served.
Appropriate remedy where uncounted custody exceeds the remaining sentence
Where the uncredited remand period equals or exceeds the remaining term, the only cure is immediate release
The appellant had been in remand custody for approximately six months before release on bond, yet had only three months of his ten-year sentence left to serve. Having directed that the custody period be factored in, the court found that crediting six months against a three-month balance left nothing to serve, and accordingly ordered the appellant's immediate release.
Legal principles established
#- Lower courts must, under section 333(2) of the Criminal Procedure Code, factor the period an accused spent in remand custody before release on bond into the sentence imposed
- The deduction of time spent in custody is a substantive right of the accused, not a procedural formality, and failure to apply it renders the sentence vulnerable on appeal
Court orders
#- 1.The appeal on sentence is allowed to the limited extent that the period spent in custody from 10th October 2012 to 3rd April 2013 (when the surety was approved) be factored into the sentence
- 2.Immediate release of the appellant, as the uncounted remand custody (six months) exceeds the three months remaining of his sentence
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence under the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyabando alias Kundo v Republic (Criminal Appeal 279 of 2019) [2025] KECA 1025 (KLR)", Case Analysis (2025). Criminal Appeal (unnumbered on record as presented). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1025/eng@2025-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.