Koech v Republic (Criminal Appeal E096 of 2023) [2025] KECA 1333 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a prisoner's bid for credit for time spent in remand because he skipped his right to appeal the sentence and went for revision instead.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court was obliged to, and did, take into account the period the appellant spent in remand custody under Section 333(2) of the Criminal Procedure Code
- 2.Whether the High Court wrongly exercised its discretion in declining to exercise its revisional jurisdiction
- 3.Whether the revision application was barred by Section 364(5) of the Criminal Procedure Code because the appellant did not appeal the sentence
Key legal issues
#Consideration of remand custody period in sentencing
The trial court was obliged under Section 333(2) of the Criminal Procedure Code to take into account the period spent in remand custody when computing the sentence
The Court affirmed the statutory duty in Section 333(2) and endorsed its interpretation in Ahamad Abolfathi Mohammed & Another v Republic, where the Court held that taking the period into account means reducing the sentence proportionately, not merely reciting that it was considered while ordering the sentence to run from conviction.
Bar on revision where appeal was available but not pursued
A party who could have appealed against a sentence but chose not to cannot resort to revision; such an application is caught by Section 364(5) of the Criminal Procedure Code
The appellant conceded he did not appeal the judgment or sentence, opting instead for revision. Since an appeal lay from the sentence and none was brought, Section 364(5) barred the revision proceedings at his insistence. This independently justified the Court's refusal to interfere with the High Court's decision.
Discretionary nature of the High Court's revisional jurisdiction
The Court of Appeal will not interfere with the High Court's decision to decline to exercise its revisional jurisdiction absent a demonstration that the discretion was wrongly exercised
Beyond the Section 364(5) bar, the appellant failed to show that the trial court omitted remand custody in sentencing, or that the High Court misdirected itself. The High Court judge had observed that the sentence of 7 years was lenient against a maximum of life imprisonment for attempted murder, and the Court found no basis to disturb that exercise of discretion.
Legal principles established
#- In sentencing, the trial court is obliged to take into account the period the accused spent in remand custody when computing the sentence
- Where an appeal lies from a finding, sentence or order and no appeal is brought, no revision proceedings may be entertained at the insistence of the party who could have appealed
Court orders
#- 1.The appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Not stated in the judgment
- Jurisdiction invoked
- Second appellate jurisdiction over the High Court's decision dismissing a revision application (Criminal Procedure Code revisional jurisdiction); no specific constitutional provision cited
Relief refused
#Interference with the High Court's dismissal of the revision application seeking credit for time spent in remand custody
The appellant did not appeal the trial court's conviction or sentence and did not demonstrate that the trial court failed to take remand custody into account, or that the High Court wrongly exercised its discretion
Costs
No costs order stated in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
“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.
The appeal fails and is accordingly dismissed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koech v Republic (Criminal Appeal E096 of 2023) [2025] KECA 1333 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1333/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.