Njenga v Republic (Criminal Revision 27 of 2025) [2025] KEHC 11245 (KLR) (30 July 2025) (Ruling) Neutral citation: [2025] KEHC 11245 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KIBERA CRIMINAL REVISION 27 OF 2025 DR KAVEDZA, J JULY 30, 2025 BETWEEN DAVID KAHEHU NJENGA .................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The applicant was charged and convicted for the ofience of assaulting a police officer contrary to section 103(a) of the National Police Service Act. He was sentenced pay a fine of Kshs. 50,000 in default to serve one - year imprisonment. 2. He filed the present application and an affidavit in support of his motion seeking sentence review. The arguments raised are that the trial court failed to consider the time he spent in remand custody during the computation of his sentence. 3. I have considered the application, the affidavit in support and the applicable law. I have also considered the trial court record. The issue for consideration is whether the trial court considered the time the applicant spent in remand custody. 4. The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already spent in custody. The duty to take in account the period an accused person had remained in custody in sentencing under the proviso to section 333(2) of the Criminal Procedure Code which is couched in mandatory terms was acknowledged by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v. Republic [2018] eKLR and Bethwel Wilson Kibor v. Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others v Kenya Prison Service & 2 others [2021] eKLR. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11245/eng@2025-07-30 1
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5. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced be considered in meting out the sentence where it is not hindered by other provisions of the law. 6. From the record, the applicant was not sentenced to a custodial term but was instead given the option of paying a fine of Kshs. 50,000, with a default sentence of twelve months’ imprisonment should he fail to pay the fine. It is therefore clear that the court did not impose a custodial sentence in the first instance. 7. The time the applicant may have spent in remand custody during the trial cannot be credited against the default custodial term, as the primary sentence remains a fine. The principle under section 333(2) of the Criminal Procedure Code, which allows for the period spent in lawful custody to be taken into account when passing sentence, does not apply in circumstances where the sentence is a fine with a default imprisonment. 8. The rationale is that the default term only arises upon non-payment of the fine, and the applicant retains the option to settle the fine and avoid imprisonment altogether. As such, the time spent in remand cannot be used to reduce or negate the default sentence should the fine remain unpaid. 9. In the premises, the application is found to be lacking in merit and is dismissed. Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2025 D. KAVEDZA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11245/eng@2025-07-30 2
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