REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIBERA MISC.APPLICATION NO. E045 OF 2026 PETERSON KABERERE WANJIRA…...….……………….…… APPLICANT VERSUS REPUBLIC………………………………….……………….…. RESPONDENT RULING 1. The applicant was charged and convicted for the offence of Having or Conveying suspected stolen property contrary to section 323 of the Penal Code. He was sentenced to serve three (3) years 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 vs. Republic [2018] eKLR and Bethwel Wilson Kibor vs. Republic [2009] eKLR and more recently in the High Court case of Vincent Sila
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Jona & 87 others vs Kenya Prison Service & 2 others [2021] eKLR. 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 fact that he was a repeated offender and has failed twice to adhere to the probation terms and conditions. I find that the sentence imposed by the trial court was proper. 7. In the premises, the application is found to be lacking in merit and is dismissed. Orders accordingly. Ruling dated and delivered virtually this 25th Day of May 2026 _________________ D. KAVEDZA JUDGE
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