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Court of AppealDismissedNot stated in the judgment

Koech v Republic (Criminal Appeal E096 of 2023) [2025] KECA 1333 (KLR)

Court of Appeal of Kenya
18 July 2025
922 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a prisoner's bid for credit for time spent in remand because he skipped his right to appeal the sentence and went for revision instead.

What this practically means

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Executive summary

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The appellant, Nicholas Koech, was convicted of attempted murder contrary to Section 220 of the Penal Code and sentenced to seven years' imprisonment. He did not appeal the conviction or sentence but instead applied to the High Court at Malindi for revision, contending that the period he spent in remand custody was not considered in sentencing. The High Court (S. M. Githinji, J.) dismissed the application on 3rd October 2023, reasoning that the sentence was in any event lenient against the maximum of life imprisonment and that the remand period must have counted even if not expressly stated. The appellant appealed to the Court of Appeal at Mombasa, arguing that the learned judge failed to apply Section 333(2) of the Criminal Procedure Code and that he should have been granted remission. The Court affirmed that Section 333(2) obliges sentencing courts to take remand custody into account, endorsing the interpretation in Ahamad Abolfathi Mohammed & Another v Republic that the sentence must be reduced proportionately. However, it found no demonstration that the trial court failed to do so, nor that the High Court wrongly declined its revisional jurisdiction. Critically, because the appellant could have appealed the sentence but did not, his revision application was barred by Section 364(5) of the Criminal Procedure Code. The appeal was dismissed with no separate costs order stated. The judgment binds subordinate courts on the duty under Section 333(2) and the bar on revision where an appeal was available but not pursued.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court was obliged to, and did, take into account the period the appellant spent in remand custody under Section 333(2) of the Criminal Procedure Code
  2. 2.Whether the High Court wrongly exercised its discretion in declining to exercise its revisional jurisdiction
  3. 3.Whether the revision application was barred by Section 364(5) of the Criminal Procedure Code because the appellant did not appeal the sentence

Key legal issues

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01

Consideration of remand custody period in sentencing

Holding

The trial court was obliged under Section 333(2) of the Criminal Procedure Code to take into account the period spent in remand custody when computing the sentence

Reasoning

The Court affirmed the statutory duty in Section 333(2) and endorsed its interpretation in Ahamad Abolfathi Mohammed & Another v Republic, where the Court held that taking the period into account means reducing the sentence proportionately, not merely reciting that it was considered while ordering the sentence to run from conviction.

p. 2
02

Bar on revision where appeal was available but not pursued

Holding

A party who could have appealed against a sentence but chose not to cannot resort to revision; such an application is caught by Section 364(5) of the Criminal Procedure Code

Reasoning

The appellant conceded he did not appeal the judgment or sentence, opting instead for revision. Since an appeal lay from the sentence and none was brought, Section 364(5) barred the revision proceedings at his insistence. This independently justified the Court's refusal to interfere with the High Court's decision.

p. 2
03

Discretionary nature of the High Court's revisional jurisdiction

Holding

The Court of Appeal will not interfere with the High Court's decision to decline to exercise its revisional jurisdiction absent a demonstration that the discretion was wrongly exercised

Reasoning

Beyond the Section 364(5) bar, the appellant failed to show that the trial court omitted remand custody in sentencing, or that the High Court misdirected itself. The High Court judge had observed that the sentence of 7 years was lenient against a maximum of life imprisonment for attempted murder, and the Court found no basis to disturb that exercise of discretion.

p. 2

Legal principles established

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  • In sentencing, the trial court is obliged to take into account the period the accused spent in remand custody when computing the sentence
  • Where an appeal lies from a finding, sentence or order and no appeal is brought, no revision proceedings may be entertained at the insistence of the party who could have appealed

Court orders

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  1. 1.The appeal is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Malindi
Not stated in the judgment
Jurisdiction invoked
Second appellate jurisdiction over the High Court's decision dismissing a revision application (Criminal Procedure Code revisional jurisdiction); no specific constitutional provision cited

Relief refused

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Interference with the High Court's dismissal of the revision application seeking credit for time spent in remand custody

The appellant did not appeal the trial court's conviction or sentence and did not demonstrate that the trial court failed to take remand custody into account, or that the High Court wrongly exercised its discretion

p. 2

Costs

No costs order stated in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

“Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody.
p. 2Meaning of taking remand custody into account in sentencing
The appeal fails and is accordingly dismissed.
p. 3Final orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Koech v Republic (Criminal Appeal E096 of 2023) [2025] KECA 1333 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1333/eng@2025-07-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.