Kiai & another v Republic

4. The appeal was conceded by learned Public Prosecution Counsel Ms Njoki Kengara. We agree. The appeal has merit and the concession well advised. 5. Section 333 of the CPC reads: “ 333. Warrant in case of sentence of imprisonment 1. A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the ocer in charge of the prison and to all other persons for carrying into eect the sentence described in the warrant, not being a sentence of death. 2. Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. 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.” 6. The rationale of the proviso to section 333(2), introduced in the year 2007, is easy to see. The reality in Kenya is that often, for a variety of reasons, accused persons spend time in remand custody during trial and any subsequent period before sentence, if convicted. In this period, sometimes long (like here 4 years or so), an accused person does not enjoy the right to liberty. It is therefore only fair that the eventual sentence imposed on the convict takes into account this period of incarceration. 7. On how to “take into account” this Court in Ahamad Abolfathi Mohammed & Sayed Mansour Mousavi (supra) held; “ The appellants have been in custody from the date of their arrest on 19th June 2012. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take eect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “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. 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. It must be remembered that the proviso to section 333(s) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We nd that the rst appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012”. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1809/eng@2026-09-25 2

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8. The adherence to the requirements of section 333(2) should not be notional. They bear a serious implication on the proportionality of a punishment a wrongdoer must suer, sometimes very signicantly. Say in this case 4 years already spent in remand custody prior to the sentence. It is for this reason that the sentencing court cannot simply state that it has taken into account the period of the presentence custody in the sentence it metes out. 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. An example of the former is to order, in appropriate circumstances, that the sentence shall be deemed to commence from the date of arrest. Only then can there be said to be faithful compliance with the provisions of section 333(2). 9. In this instance, the sentencing Court merely imposed a “global” prison term thereby falling into an error of principle cautioned against in Ahamad Abolfathi Mohammed & Sayed Mansour Mousavi and the sentence calls for interference by this appellate Court. 10. 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. Those are our Orders. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2026. F. TUIYOTT ………………………….. JUDGE OF APPEAL NDUMA NDERI ………………………….. JUDGE OF APPEAL MUNYAO SILA ……………………..…… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1809/eng@2026-09-25 3

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