Langat v Republic (Criminal Appeal E018 of 2026) [2026] KEHC 2501 (KLR) (3 March 2026) (Ruling) Neutral citation: [2026] KEHC 2501 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KERICHO CRIMINAL APPEAL E018 OF 2026 JR KARANJA, J MARCH 3, 2026 BETWEEN EDWOM KIPNGETICH LANGAT ....................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Notice of Motion dated 7th November 2025 is essentially an application or request to this court to exercise its revisionary powers and apply Section 333[2] of the Criminal Procedure Code to the Computation of the sentence currently being served by the Applicant for the offence of defilement Contrary to Section 8[1] as read with Section 8[3] of the Sexual Offences Act for which the Applicant was convicted and sentenced accordingly by the Chief Magistrate’s Court at Kericho on the 31st June 2019. A first appeal to this court by the Applicant was disallowed and dismissed in its entirely on 2nd November 2023. The window for a Second appeal to the Court of Appeal was left open but it would seem that the Applicant decided not to take that route and instead filed the present application which although not well framed or drafted to capture its objective, is actually an application for this court to exercise its power of review under Section 364 of the Criminal Procedure Code. Under Article 165 [6] and [7] of the Constitution, the High Court is empowered to exercise supervisionary and revisionary jurisdiction over subordinate courts. 2. Strictly speaking and regard being given to Article 159 [2][d] of the Constitution, the present application does not amount to and cannot be constructed as an appeal to this court against its own decision in which it afirmed the decision of the trial court. In any event an appeal to this court would not lie for want of jurisdiction to sit on appeal against its own decision whether on conviction and/ or sentence. In such circumstances, the objection to the application by the Respondent would find merit. However, the application being a review application https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2501/eng@2026-03-03 1
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which may be brought under the court’s supervisory jurisdiction and not an appeal “per-se”, the objection is misplaced and is hereby overruled and dismissed. 3. The gravamen of the present application is Section 333 [2] of the Criminal Procedure Code which provides that: “ 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. 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”. 4. Hence, the foregoing provision of the law dictates that a prison sentence begins on the day it is pronounced, but specifically requires court to take into account any time a convict previously spent in remand custody before conviction. It ensures that pre-sentence detention is deducted from the final sentence. Such is a mandatory requirement which may lead to injustice and violation of fundamental rights if not observed by the courts. Invariably, the High Court may invoke its revisionary jurisdiction to correct sentences where there is failure by the trial court to comply with Section 333[2] of the Criminal Procedure Code. 5. In Bethuel Wilson Kibor Vs. Republic [2009] eKLR, the Court of Appeal stated as follows: “ By proviso to Section 333[2] of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody.” The provision therefore protects accused persons from serving longer sentences than intended. 6. On the same provision [Section 333[2] Criminal Procedure Code], the judiciary sentencing policy guidelines states that: “ The proviso 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.” 7. In Ahamad Abolfathi Mohammed & Another Vs. Republic [2018] eKLR, the Court of Appeal held that: “ Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionally by 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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2501/eng@2026-03-03 2
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8. In this case the trial court sentenced the Applicant to twenty [20] years imprisonment on 31st January 2019 whereas the charge sheet showed that he was arrested on 31st May 2017. So, if he spent some time in custody prior to the sentence, that the period ought to have been taken into consideration in the computation of the ultimate sentence. The trial court record does not show that this requirement was complied with in terms of the proviso to Section 333 [2] of the Criminal Procedure Code. Consequently, the present application is in that regard merited, and is hereby allowed to the extent that the period taken by the Applicant in custody be taken into account in the computation of the sentence he is currently serving of which the record shows that he has already served almost eight [8] years of the sentence. If the inclusion of the time spent in custody impacts greatly on the sentence downwards, then the Applicant’s case may be considered for inclusion in the judiciary’s decongestion of prisons programme. Ordered accordingly. DATED AND DELIVERED THIS 3RD DAY OF MARCH, 2026 HON. J. R. KARANJAH, JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2501/eng@2026-03-03 3
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