Charles Omukhunya v Republic
The bottom line
#Kenya's Court of Appeal confirmed that time spent in remand custody must reduce a prison sentence, backdating Omukhunya's 15-year term to his 2017 arraignment.
What this practically means
#Executive summary
#Key legal issues
#Mandatory application of the proviso to section 333(2) of the Criminal Procedure Code
The trial court was obliged to take into account the period the appellant spent in remand custody before sentencing; failure to state that the sentence took account of that period meant it was ignored.
The trial court's sentencing remarks made no reference to the period spent in custody nor to when the sentence was to commence. Following its own earlier decision in Ahamad Abolfathi Mohammed and the decision in Bethwel Wilson Kibor, the Court held that custody time must proportionately reduce the sentence. The appellant was in custody from arraignment on 27th November 2017 until conviction and sentence on 3rd September 2018, so the sentence must run from the date of arraignment.
Meaning of 'taking into account' the period spent in custody
'Taking into account' custody time means considering it so that the imposed sentence is reduced proportionately; a mere recital that the period was considered, coupled with an order that the sentence run from conviction, amounts to ignoring it.
Adopting its reasoning in Ahamad Abolfathi Mohammed & Sayed Mansour Mousavi v Republic, the Court explained that the proviso introduced in 2007 gives courts power to include pre-sentence custody in the computation of the sentence. Merely stating that the period was considered while ordering the sentence to run from the date of conviction ignores that period altogether. The Judiciary Sentencing Policy Guidelines reinforce this obligation, since failure to do so results in excessive punishment disproportionate to the offence.
Legal principles established
#- Where an accused was held in custody prior to sentencing, section 333(2) of the Criminal Procedure Code obliges the sentencing court to take that period into account, which means reducing the imposed sentence proportionately by the period already spent in custody; it is not enough for a court to merely state that it has taken the period into account while ordering the sentence to run from the date of conviction.
Court orders
#- 1.The appeal against sentence allowed to the extent that the 15-year sentence of imprisonment shall run from 27th November 2017, the date the appellant was arraigned in court
- On appeal from
- High Court
- null
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code (appeal against sentence only; specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kirimwa Ngura v Republic[2026] KECA 1496 (KLR)24 Jul 2026followed
Cite this brief
#Cite this brief
Caselaw, "Charles Omukhunya v Republic", Case Analysis (2025). Criminal Appeal (not numbered on the face of the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/237/eng@2025-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.