Ndege v Director of Public Prosecutions (Criminal Miscellaneous Application E029 of 2025) [2025] KEHC 18514 (KLR) (20 November 2025) (Ruling) Neutral citation: [2025] KEHC 18514 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CRIMINAL MISCELLANEOUS APPLICATION E029 OF 2025 TW CHERERE, J NOVEMBER 20, 2025 BETWEEN DAVID NDEGE ......................................................................................... APPLICANT AND DIRECTOR OF PUBLIC PROSECUTIONS .................................... RESPONDENT RULING 1. The Applicant, David Ndege, has moved this Court by way of an application seeking that the period he spent in pre-sentence custody be taken into account pursuant to Section 333(2) of the Criminal Procedure Code. He contends that although he was arrested on 02nd August 2019 and remained in custody until his conviction on 30th June 2020, the trial court ordered that his ten-year sentence for the offence of defilement commence from the date of conviction, without crediting the period spent in custody. 2. The application is supported by an affidavit sworn by the Applicant, in which he reiterates that the trial court did not give effect to the mandatory requirement of Section 333(2) of the Criminal Procedure Code and the Judiciary Sentencing Policy Guidelines. He therefore urges this Court to consider the ten months already spent in custody as part of his sentence. 3. Section 333(2) of the Criminal Procedure Code provides as follows: “ 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 subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18514/eng@2025-11-20 1
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4. Clause 2.3.18 of the Judiciary Sentencing Policy Guidelines similarly provides that courts are obliged to take into account the time already spent in custody, noting that failure to do so affects the proportionality of the sentence and may result in an excessively harsh punishment. The Guidelines emphasise that this applies even in offences attracting minimum sentences and to accused persons who remain in custody due to inability to meet bail or bond terms. 5. The Court of Appeal in Ahmad Abolfathi Mohammed & Another v Republic (2018) eKLR, expressed itself as follows: “ 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… 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 conviction…” 6. Similarly, in Bethwel Wilson Kibor v Republic [2009] eKLR, the Court of Appeal reiterated that: “ By proviso to section 333(2) … where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody.” 7. In the present case, the trial court record confirms that the Applicant was arrested on 02nd August 2019 and remained in custody continuously until his conviction on 30th June 2020. The record does not show that the trial court credited the Applicant with the ten months spent in custody. The sentence was ordered to commence from the date of conviction, in effect disregarding the statutory and jurisprudential requirements of Section 333(2) of the Criminal Procedure Code. 8. The failure to take into account the pre-sentence custody period constitutes an error, as recognised in the authorities cited above, and this Court is therefore obliged to intervene. 9. Having considered the application, the supporting affidavit and the legal framework, the Court finds that the Applicant is entitled to have the period of pre-sentence custody credited towards his sentence. Disposition 10. In light of the foregoing, the Court makes the following orders: 1. Pursuant to Section 333(2) of the Criminal Procedure Code, the Applicant’s sentence of (10) ten years’ imprisonment shall be computed as commencing on 02nd August 2019, being the date of his arrest and first detention in custody 2. The prison authorities shall give effect to this recalculation in determining the Applicant’s remaining period of imprisonment. Orders accordingly. DELIVERED AT NYAMIRA THIS 20TH DAY OF NOVEMBER 2025 WAMAE. T. W. CHERERE JUDGE Appearances Court Assistant - Hilda https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18514/eng@2025-11-20 2
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Applicant - Present For the DPP - Mr. Chirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18514/eng@2025-11-20 3
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