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Court of AppealPartially AllowedCriminal Appeal (unnumbered on record as presented)· [2025] KECA 1025 (KLR)

Nyabando alias Kundo v Republic (Criminal Appeal 279 of 2019) [2025] KECA 1025 (KLR)

Court of Appeal of Kenya
30 May 2025
950 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The appellant, Geofirey Nduko Nyabando alias Kundo, was convicted by the High Court of the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code and sentenced to ten years' imprisonment for the murder of Kepha Bosire Kebaya committed on 7th October 2012. He appealed to the Court of Appeal at Kisumu against both conviction and sentence. When the appeal came up for virtual hearing on 19th May 2025, the appellant, appearing from Kisumu Maximum Prison without his counsel, elected to proceed and abandoned all grounds of appeal except the sentence. He asked the court to factor into his sentence the period he spent in remand custody between his first arraignment on 10th October 2012 and his release on bond, relying on section 333(2) of the Criminal Procedure Code. Prosecution counsel conceded, noting the appellant had only three months left to serve. The court, per a single judgment of Asike-Makhandia, Omondi and Achode JJA, followed the Supreme Court's decision in Republic v Mwangi (ISLA, Amicus Curiae) and Momanyi v Republic, holding that deduction of remand custody is a substantive right, not a procedural formality. The court found it common ground that the trial court had not factored in the remand period. It allowed the appeal on sentence to the limited extent that the custody period from 10th October 2012 to 3rd April 2013 (approval of surety) be counted, and, since that six-month period exceeded the three months remaining, ordered the appellant's immediate release. The judgment was delivered at Kisumu on 30th May 2025. No costs order was made.

Key legal issues

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01

Mandatory consideration of pre-conviction custody under section 333(2) CPC

Holding

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

Reasoning

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.

p. 2
02

Appropriate remedy where uncounted custody exceeds the remaining sentence

Holding

Where the uncredited remand period equals or exceeds the remaining term, the only cure is immediate release

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.Immediate release of the appellant, as the uncounted remand custody (six months) exceeds the three months remaining of his sentence

Authorities

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Legislation

  • Penal Codesection 203 as read with section 204
  • Penal Codesection 202 as read with section 205
  • Criminal Procedure Codesection 333(2)

Cases cited (2)

  • Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae)
    (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024)
  • Momanyi vs. Republic
    (Criminal Appeal 11 of 2020) [2022] KEHC 16302 (KLR) (14 December 2022)
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

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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, "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.