Mung’ati v Republic (Miscellaneous Criminal Application E010 of 2025) [2025] KEHC 19489 (KLR) (11 November 2025) (Ruling) Neutral citation: [2025] KEHC 19489 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KITUI MISCELLANEOUS CRIMINAL APPLICATION E010 OF 2025 LW GITARI, J NOVEMBER 11, 2025 BETWEEN MUMO MUNG’ATI .................................................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The applicant vides a notice of motion dated 29/1/2025 has moved the court seeking an order that the court considers and orders compliance with Section 333(2) of the Criminal Procedure Code. 2. It is based on the facts that the applicant was arrested on 20/3/2018 for an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in Kitui High Court Criminal Case No. 12/2018. The trial proceeded and n 26/08/2020 he was sentenced to served twenty-three (23) years imprisonment upon being convicted. The applicant contends that he had spent two years and five months in pre-trial detention but that period was not considered at the time the sentence was imposed by the trial Judge. 3. He now urges the court to consider that period of two years and five months and reduce the sentence imposed proportionately. The respondent conceded the application as the time spent in custody was not considered. I have considered the application. Section 333(2) of the Criminal Procedure Code (Cap 75 Laws of Kenya) provides as follows: “ (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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19489/eng@2025-11-11 1
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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.” 4. This provision was interpreted by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another -vs- Republic, CA (2018) KECA 743 (KLR) where the Court stated: “ The appellants have been in custody from the date of their arrest on 19/6/2016 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 said 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 not evidence that the court took into account the period already spent by the appellant in custody. Taking into account the period spent in custody must man considering that period so that the imposed sentence is reduced proportionately by the period already spent. 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 because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to Section 333(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 that the appellants’ sentence of imprisonment to run from the date of their arrest on 19/06/2012.” 5. In the trial before the High Court, the applicant was arraigned in court on 21/03/2018. The entire trial proceeded while he was held in custody. The sentence was passed on him on 26/8/2020 when he was ordered to serve twenty-three (23) years. The time spent in custody was not at all considered although the Judge noted that he had been in custody. 6. In view of the mandatory provision under Section 333(2) of the Criminal Procedure Code Supra and the binding decision in Ahamad Abolfathi Mohammed -vs- Republic Supra the application before me has merits. The time the applicant had spent in custody should have been taken into account by reducing the sentence proportionately with the time that he had spent in prison. 7. I find that the application has merits. I order that the sentence of twenty three (23) years shall be reduced by two (2) years and five (5) months to take into account the time that he had spent in custody awaiting trial. The Deputy Registrar to serve the order on the Oficer-In-Charge of the Prison where the applicant is serving sentence for compliance. DATED, SIGNED AND DELIVERED AT KITUI THIS 11TH DAY OF NOVEMBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19489/eng@2025-11-11 2
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