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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal 239 of 2018

Marwa & another v Republic

Court of Appeal
19 December 2025
823 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 confirmed that judges must reduce sentences by the time accused persons already spent in remand custody before conviction.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Kisumu against sentence only. The appellants, Stephen Robi Marwa and Daniel Marwa Boke, were convicted by the High Court at Migori (Mrima J.) of the murder of Solomon Adams Mwita and each sentenced to twenty years imprisonment. Their sole ground of appeal was that the sentencing court failed to factor in the over three years they spent in remand custody before being granted bail, contrary to Section 333(2) of the Criminal Procedure Code, which mandatorily requires that a sentence take account of the period spent in custody prior to sentence. Counsel for the appellants, citing Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR and the 2023 Judiciary Sentencing Guidelines, sought that the sentence be set aside or recalculated. The respondent, through the Assistant Director of Public Prosecutions, conceded the appeal, acknowledging the mandatory obligation under s.333(2). The Court held that although the twenty-year sentence was significantly below the statutory maximum of death for murder and therefore not excessive or disproportionate, the record did not show that the trial court took the remand period into account as legally required; to that extent the trial court misdirected itself. The Court upheld the sentence but directed that it take into account the period from arraignment until the appellants' release on bail in November 2016. The appeal accordingly succeeded only to that extent. The judgment binds subordinate courts on the mandatory application of s.333(2), while noting the principle must be applied contextually.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred by failing to take into account the period the appellants spent in remand custody whilst sentencing them, contrary to the mandatory provisions of Section 333(2) of the Criminal Procedure Code

Key legal issues

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Whether failure to factor pre-trial custody into sentence under s.333(2) CPC is a misdirection entitling the appellate court to interfere

Holding

Yes. The record did not show that the trial court took the remand period into account as legally required; to that extent the trial court misdirected itself and the appellate court was entitled to interfere, directing that the sentence account for the period from arraignment to release on bail.

Reasoning

Section 333(2) creates a mandatory obligation on the sentencing court to factor in time spent in remand custody. The record showed the appellants were in custody from June 2013 to November 2016. Although the twenty-year sentence was well below the statutory maximum of death and not excessive, the absence of any indication that the remand period was considered was a misdirection. The Court upheld the sentence but directed that it take account of the remand period.

p. 2

Legal principles established

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  • Section 333(2) of the Criminal Procedure Code mandatorily requires a sentencing court to take into account the period an accused spent in custody prior to sentence, by reducing the sentence proportionately.
  • Taking time spent in custody into account means the imposed sentence is reduced proportionately by the period already spent in custody, though the principle is applied contextually.

Court orders

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  1. 1.The sentence of twenty years imprisonment imposed by the High Court is upheld
  2. 2.The sentences shall take into account the period from the appellants' arraignment in court until their release on bail in November 2016

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Migori
HCCRC No. 71 of 2014
Jurisdiction invoked
First appeal against sentence under the Court of Appeal's appellate jurisdiction (Criminal Appeal; Penal Code s.203 as read with s.204; Criminal Procedure Code s.333(2))

Relief refused

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Setting aside of the sentence

The Court upheld the twenty-year sentence as it was significantly below the statutory maximum of death for murder and not excessive or disproportionate

p. 2

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
p. 2Statutory text of s.333(2) Criminal Procedure Code
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.
p. 2Meaning of taking custody period into account
Whereas we uphold the sentence imposed, we nonetheless direct their sentences will take into account the period from their arraignment in court until sometimes in November 2016, when they were each respectively released on bail.
p. 2Final orders - sentence upheld but remand period to be factored in

Issues in the judgment

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minor

Judgment states the appeal succeeds and the court is entitled to interfere, yet upholds the original sentence without quantifying any reduction.

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, "Marwa & another v Republic", Case Analysis (2025). Criminal Appeal 239 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2297/eng@2025-12-19

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