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Court of AppealDismissedNot stated in judgment (application dated 22nd November 2024)· [2025] KECA 1056 (KLR)

Joseph Chiteri v Republic

Court of Appeal of Kenya
13 June 2025
ASAsike-MakhandiaHOH. A. OmondiLKL. Kimaru
1,002 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to credit a convict's remand time, ruling it cannot reopen a final sentencing decision it already made.

What this practically means

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Executive summary

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The applicant, Joseph Chiteri, applied under Section 333(2) of the Criminal Procedure Code for resentencing to account for time spent in remand custody from his arrest in April 2008. He was convicted of murder by the High Court, sentenced to death, and on appeal a differently constituted bench of the Court of Appeal (Kiage, Ngugi & Tuiyott, JJA) upheld the conviction but substituted the death sentence with 30 years' imprisonment. The applicant, now aged 60 and HIV-positive, urged that failure to factor in remand custody violated Article 50(2)(p) of the Constitution, citing Bethwel Wilson Kibor and William Okungu Kittiny, and relied on his remorse, first-offender status and prison rehabilitation certificates. The respondent, supported by Ms Busienei for the DPP, argued the court must be taken to have considered the remand period when substituting the sentence, and noted the applicant had not attached the appellate judgment or proceedings to show otherwise. The court accepted that Section 333(2) requires remand custody to be counted in sentencing as a matter of fairness, but held it was functus officio: the earlier substitution of the death sentence with 30 years was a final determination it could not revisit or amend, absent circumstances prescribed by law. Following Josephat Kenyuri and Ngare Gikonyo, it further held that Section 333(2) operates at initial sentencing or appellate resentencing and cannot ground a subsequent application after a final appellate decision. The applicant also bore the burden of annexing the appellate judgment to prove remand time was ignored; having failed to do so, he invited the court to speculate, which it declined. The application dated 22nd November 2024 was dismissed.

Key legal issues

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01

Jurisdiction of the Court of Appeal to entertain a subsequent Section 333(2) resentencing application

Holding

The court is functus officio after substituting the death sentence with a 30-year term; it lacks authority to reconsider or amend that final determination.

Reasoning

The previous differently-constituted bench had adjudicated the sentence, constituting a final determination. The functus officio principle, drawn from Josephat Kenyuri v Republic and Ngare Gikonyo v Republic, bars revisiting the judgment save in circumstances provided by law. The application was also not framed as a review of that judgment, so no jurisdictional gateway was open to the applicant.

p. 2
02

Scope of Section 333(2) of the Criminal Procedure Code

Holding

The provision requires pre-sentence remand custody to be factored in at initial sentencing or during appellate resentencing, but cannot ground a fresh application after a final appellate decision.

Reasoning

The court acknowledged that Section 333(2) serves fairness and equity in sentencing by ensuring pre-sentencing custody is accounted for. However, relying on Bethwel Wilson Kibor and William Okungu Kittiny, it held the provision operates at the trial or resentencing stage, not as a basis for a subsequent application after the appellate process is concluded.

p. 2
03

Evidential burden on an applicant seeking credit for remand period

Holding

The applicant bore the burden of annexing the appellate judgment and proceedings to show remand time was not considered; failing that, the court would act on speculation, which it cannot do.

Reasoning

The respondent pointed out that neither the judgment nor the proceedings of the Court of Appeal were attached to confirm whether the substituted sentence accounted for the remand period. The court agreed that the applicant bore the burden to avail such evidence and, having failed to do so, could not invite the court to speculate.

Legal principles established

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  • Once a court has rendered its final decision on a matter, it cannot revisit or alter its judgment except under specific circumstances provided by law (functus officio); a Section 333(2) application cannot be a vehicle for reconsidering a final appellate sentence.
  • Section 333(2) of the Criminal Procedure Code must be addressed by the trial court at initial sentencing or by the appellate court at resentencing, and cannot found a subsequent application after a final appellate decision.
  • A party alleging that remand custody was not considered in sentencing bears the burden of producing the sentencing judgment or proceedings; a court will not act on speculation.

Court orders

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  1. 1.The application dated 22nd November 2024 is dismissed
On appeal from
High Court of Kenya
Jurisdiction invoked
Section 333(2) of the Criminal Procedure Code (application for resentencing); the court held it had no jurisdiction to entertain the application

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, "Joseph Chiteri v Republic", Case Analysis (2025). Not stated in judgment (application dated 22nd November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1056/eng@2025-06-13

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