Morara v Republic (Criminal Review E082 of 2025) [2026] KEHC 11686 (KLR) (Crim) (16 April 2026) (Ruling) Neutral citation: [2026] KEHC 11686 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) CRIMINAL CRIMINAL REVIEW E082 OF 2025 AM MUTETI, J APRIL 16, 2026 BETWEEN VITALIS SAKWA MORARA .................................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The applicant has by way of undated Notice of Motion moved this court under the provisions of Section 333(2) of the Criminal Procedure Code and Articles 22 (1), 23 (1) (3) (a) (f) and 159 of the Constitution and the sentencing policy guidelines seeking to have the period spent in custody before conviction taken into account in computing sentence. 2. The applicant was convicted of two counts of robbery with violence and sentence to serve a period of 15 years imprisonment. 3. The learned honorable magistrate in his sentencing notes on 7/12/2023 noted that the applicant had been in custody for a period of 6 months prior to sentencing. 4. The court did not however indicate whether in line with the provisions of Section 333(2) of the Criminal Procedure Code the period of six months would be discounted from his sentence. 5. Section 333(2) of the Criminal Procedure Code provides: Warrant in case of sentence of imprisonment (1) A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11686/eng@2026-04-16 1
page 1 of 2
and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death. (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. 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. 6. The sentencing court must as of necessity state in sentencing that the sentence imposed upon an accused person would be computed from the period the accused was placed in custody pending trial otherwise any ambiguity in sentencing would leave the prison authorities with no option but to compute sentence from the date of sentencing. 7. The court of Appeal in Ahmad Abolfathi Mohammed & Another Vs. Rep [2018] eKLR emphasized that a trial court is obliged to take into account the period spent in custody before conviction and sentencing. 8. The position was taken by the Court of Appeal is binding upon this court and accordingly this court agrees with the applicant and the office of the Director of Public Prosecution that the period of Six months that the applicant was in custody should be discounted from his 15 year sentence. 9. Accordingly, the application succeeds and the sentence of 15 years shall be reduced by 6 months. 10. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF APRIL, 2026. A. M. MUTETI JUDGE In the presence of: Habiba: Court Assistant Applicant: Present Mogere for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11686/eng@2026-04-16 2
page 2 of 2