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Court of AppealAllowedCriminal Appeal E045 of 2025

Kiai & another v Republic

Court of Appeal
25 September 2026
FTF TuiyottMNMN NdumaMSM Sila
1,139 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that judges must actually reduce sentences by time already spent in remand, not just say they considered it.

What this practically means

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Executive summary

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The appellants, Ismail Ali Kiai and Salim Jilo Kiai, were convicted of manslaughter contrary to section 202 of the Penal Code and each sentenced by the High Court at Garissa (Ali-Aroni, J) on 28th October 2021 to 15 years' imprisonment. In sentencing, the Judge stated she had considered that the accused had spent four years in custody awaiting trial. On appeal, the appellants raised a single issue: that section 333(2) of the Criminal Procedure Code requires the period spent in remand custody to be taken into account not merely by stating it was considered, but by reducing the sentence proportionately. They relied on the Court of Appeal decisions in Ahamad Abolfathi Mohammed & Sayed Mansour Mousavi and Bethwel Wilson Kibor. The respondent, through learned Prosecution Counsel Ms Njoki Kengara, conceded the appeal, and the Court agreed the concession was well advised. The Court held that compliance with section 333(2) must not be notional: the sentencing court must demonstrate how the remand period was taken into account, either by discounting it from the sentence or by ordering the sentence to commence from the date of arrest. Imposing a global term with a bare statement of consideration falls into the error of principle cautioned against in Ahamad Abolfathi Mohammed. The Court allowed the appeal and varied the sentence by ordering that the time spent in remand custody be discounted from the period each appellant is to serve. The judgment was delivered by a unanimous bench of Tuiyott, Nduma Nderi and Munyao Sila, JJA, at Nairobi on 25th September 2026.

Questions the Court framed

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

  1. 1.Whether the sentencing court complied with section 333(2) of the Criminal Procedure Code in taking into account the period spent in remand custody

Key legal issues

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01

Whether stating that pre-sentence custody was considered satisfies section 333(2) of the CPC

Holding

No. The sentencing court must demonstrate how the remand period was taken into account, either by discounting it from the sentence or by ordering the sentence to run from the date of arrest; a global term with a bare statement of consideration is an error of principle.

Reasoning

The proviso to section 333(2), introduced in 2007, exists because accused persons often spend long periods in remand and do not enjoy liberty during that time. Following Ahamad Abolfathi Mohammed, 'taking into account' means reducing the sentence proportionately by the period already spent in custody. Merely stating that the period was considered while imposing a global term amounts to ignoring it altogether, so the sentence is liable to appellate interference.

p. 2

Legal principles established

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  • Compliance with section 333(2) CPC requires the sentencing court to demonstrate how the pre-sentence custody period was taken into account, by discounting it from the sentence or deeming the sentence to commence from the date of arrest; a mere notional statement is insufficient.

Court orders

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  1. 1.The appeal is allowed to the extent that the sentence imposed on 28th October 2021 is varied by an order that the time spent by the appellants in remand custody shall be discounted from the period each of the appellants shall serve under the sentence

The bench

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

FT
majority
MN
majority
MS
majority
On appeal from
High Court of Kenya at Garissa
Criminal Case No. 3 of 2018
Jurisdiction invoked
First appeal to the Court of Appeal against sentence under the Criminal Procedure Code

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.

In pronouncing the period of imprisonment imposed, it must demonstrate how it has taken into account the remand period or categorically order that the period spent in remand custody be discounted from the period to be served.
p. 3Compliance with section 333(2) CPC
The appeal is allowed to the extent that the sentence imposed by the sentencing Court on 28th October 2021 is hereby varied by an order that the time spent by the appellants in remand custody shall be discounted from the period each of the appellants shall serve under the sentence.
p. 3Final orders - variation of sentence
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. 2Adopted reasoning from Ahamad Abolfathi Mohammed

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, "Kiai & another v Republic", Case Analysis (2026). Criminal Appeal E045 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1809/eng@2026-09-25

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