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Court of AppealPartially AllowedNot stated in the judgment

Menja v Republic (Criminal Appeal 142 of 2018) [2026] KECA 1034 (KLR)

Court of Appeal of Kenya
29 May 2026
1,429 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 ruled that a prisoner's 20-year sentence must count time spent in jail before conviction, not just time after.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (M'Inoti, ole Kantai and Ali-Aroni, JJAA) allowed a second appeal on a single issue: whether the High Court erred in directing that the appellant's sentence run from the date of his conviction. The appellant was convicted on 13th May 2014 by the Chief Magistrates' Court at Nyeri of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and sentenced to 19 years imprisonment. His first appeal to the High Court at Nyeri was dismissed by a judgment dated 28th October 2018, which set aside the 19-year term and substituted 20 years, to run from the date of conviction. On second appeal, the appellant relied on section 333(2) of the Criminal Procedure Code as amended in 2007 and on this Court's decision in Ahamad Abolfathi Mohammed & Another v. Republic, submitting that the period spent in custody during trial must be taken into account. The respondent's submissions ignored the single issue and addressed abandoned grounds. The Court, applying Ahamad Abolfathi Mohammed, held that 'taking into account' the custody period means reducing the sentence proportionately or antedating it; ordering the sentence to run from conviction amounts to ignoring the custody period altogether. Noting that neither the trial court nor the first appellate court referred to section 333(2), and that it was common ground the appellant was incarcerated throughout his trial, the Court found an unoverlookable statutory misdirection. The appeal was allowed to the extent that the 20-year sentence runs from the date of arrest. No costs order was made. The judgment is a single unanimous judgment of the Court; its binding rule is that sentencing courts must meaningfully credit pre-sentence custody under section 333(2).

Questions the Court framed

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

  1. 1.Whether the first appellate court erred by directing the appellant's sentence to run from the date of his conviction rather than taking into account the period spent in custody as required by section 333(2) of the Criminal Procedure Code

Key legal issues

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01

Whether failure to consider the period spent in custody under section 333(2) of the Criminal Procedure Code vitiates a sentence

Holding

Yes. The trial court and first appellate court made no reference to section 333(2); their failure to consider a factor the statute expressly requires them to consider was a misdirection the Court could not overlook, so the sentence was ordered to run from the date of arrest.

Reasoning

Section 333(2) as amended in 2007 obliges courts, where the convicted person was held in custody prior to sentence, to take that period into account. The Judiciary Sentencing Policy Guidelines and the Court's earlier decision in Ahamad Abolfathi Mohammed confirm that 'taking into account' means reducing the sentence proportionately or antedating it. Both courts below were silent on the provision despite the appellant's incarceration throughout the trial, amounting to an uncorrectable misdirection warranting appellate intervention on the sentence commencement date only.

p. 3

Legal principles established

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  • A court sentencing an accused who was in custody during trial must take the period spent in custody into account under section 333(2) of the Criminal Procedure Code, meaning the sentence must be reduced proportionately or run from the date of arrest; merely ordering the sentence to run from the date of conviction amounts to ignoring that period.

Court orders

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  1. 1.The appeal is allowed to the extent that the sentence of twenty years imposed by the first appellate court shall run from the date of the appellant's arrest rather than from the date of his conviction

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 Nyeri
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (specific enabling provision not stated in the judgment)

Relief refused

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Any interference with the sentence of 20 years imprisonment imposed by the first appellate court beyond antedating it to the date of arrest

The appeal was limited to the single issue of the commencement date of the sentence; the substantive conviction and length of sentence were not disturbed

p. 3

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.

It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody.
p. 3Meaning of taking custody period into account under section 333(2)
We are satisfied that failure by the trial court and the first appellate court to consider a factor which the statute expressly requires them to consider, was a misdirection which we cannot overlook.
p. 3Appellate intervention for statutory sentencing misdirection
Ultimately, we allow the appeal to the extent that the sentence of twenty years imposed upon the appellant by the first appellate court shall run from the date of his arrest rather than from the date of his conviction. It is so ordered.
p. 3Final orders / disposition

Issues in the judgment

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minor

The judgment contains no case number or neutral citation for this appeal; the case title and citation fields are taken from the caption/body only

minor

The respondent's submissions did not address the single issue raised by the appellant, arguing instead on abandoned grounds

minor

The record shows repeated typographical errors rendering 'offence' and 'effect' as 'ofience'/'efience'/'efiected' forms in the transcription

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, "Menja v Republic (Criminal Appeal 142 of 2018) [2026] KECA 1034 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1034/eng@2026-05-29

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