Peter Karuri Theuri v Republic

6. Following his conviction the Applicant was granted an opportunity to mitigate. The trial magistrate then sentenced him to serve ten (10) years imprisonment without the option of a fine. The Applicant now prays that the period which he spent in remand custody be deducted from his sentence. 7. The ODPP opposed the application on grounds that the Applicant was held in remand not only for this offence but on account of several other pending cases. 8. The court is empowered by Article 165 (6) of the Constitution of Kenya 2010 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. Section 333(2) of the Penal Code Cap 63 Laws of Kenya provides as follows;“ Subject to the provisions of Section 38 of the Penal Code, every sentence shall be deemed to commence from and 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, been held in custody, the sentence shall take account of the period spent in custody.” [Own emphasis] It is clear from the above proviso that the law requires courts to take into account the period the convict spent in custody. 10. The provisions of section 333(2) of the Criminal Procedure Code were considered in this case of Ahamad Abolfadhi Mohammed & Another Vs Republic [2018] eKLR where the Court of Appeal held as follows:“ 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. It is not enough for the court to merely state that it has taken into account the period already spent 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 332 (2) 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 find that the first appellate court misdirected itself in that respect and should have directed the appellant’s sentence of imprisonment to run from the date of their arrest on 19th June 2012.” [Own emphasis] 11. The Judiciary Sentencing Policy Guidelines clauses 7:10 and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17652/eng@2025-11-28 2

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7:11 state that:“ The proviso to section 332(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.” 12. The ODPP has objected to this application on grounds that the Applicant was being held in remand due to several other pending cases. The details/citations of those several pending cases were not availed to this court. 13. In my view if the accused was in custody for other ‘pending’ cases this would not be a reason to deny him his rights under Section 333(2) of the penal code. These rights would only be affected if it is shown/ proved that the Applicant was in custody on account of previous convictions. The ODPP did not allege that the Applicant was in custody due to previous ‘convictions’. 14. I have perused the proceedings in the Lower Court file. In sentencing the trial magistrate took into account the mitigation offered by the Applicant and the pre-sentence report. The trial court did also take into account the period of time the applicant had spent in custody and ordered that the sentence of ten (10) years was to run from 1st April 2022, the date when the Applicant took plea. 15. I find no merit in this application. The same is frivolous and amounts to an abuse of court process. The application is dismissed in its entirety. DATED IN NYERI THIS 28TH DAY OF NOVEMBER, 2025. ………………………………… MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17652/eng@2025-11-28 3

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