Shadrack Wabuke Buyuni v Republic

3. d. That the Honourable court be pleased to invoke the provision of section 333(2) of the Criminal Procedure Code i.e. the time spent in remand be factored in the sentence to be awarded. e. That the high court has competent jurisdiction to hear and determine this application under Article 163(b) of the Constitution of Kenya 2010. The Application is supported by the annexed affidavit sworn by Shadrack Wabuke Buyu, whose averments echo the grounds of this application. Analysis and Determination 4. On perusal of the application, the main issue for determination herein is whether the applicant is entitled to review of sentence under Section 333(2) of the Criminal Procedure Code. 5. Section 333(2) of the Criminal Procedure Code provides: “ Subject to the provisions of Section 38 of the Penal Code, 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 sub section (1) has prior, to such sentence shall take account of the period spent in custody.” 6. It is clear from the above provision that the law requires courts to take into account the period the convict spent in custody. The provisions of section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR where the Court of Appeal held that: “ The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. 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 effect 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. 7. According to The Judiciary Sentencing Policy Guidelines: “ The provision to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10913/eng@2025-07-25 2

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8. This court is empowered by Article 165(6) of the Constitution of Kenya to review a decision by a subordinate court. Article 165(6) provides: The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. 9. The applicant was arrested on 21st December 2017 and convicted on 24th February 2020. Notably, the Applicant has not contested the sentence, he only seeks to have the duration he spent in custody be taken into account which is his legal entitlement in my considered view. 10. I have considered the application and all the information available. It is thus crystal clear that the learned trial Magistrate did not take into consideration the provisions of section 333(2) of the Criminal Procedure Code while sentencing the Applicant herein. Consequently, the committal warrant to prison be amended with a commencement being the date of arrest 21st December 2017. 11. It is so ordered. DATED, SIGNED AND DELIVERED VIA CTS AT ELDORET THIS 25TH JULY 2025 .................................. R. NYAKUNDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10913/eng@2025-07-25 3

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