Marwa & another v Republic
The bottom line
#Kenya's Court of Appeal confirmed that judges must reduce sentences by the time accused persons already spent in remand custody before conviction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred by failing to take into account the period the appellants spent in remand custody whilst sentencing them, contrary to the mandatory provisions of Section 333(2) of the Criminal Procedure Code
Key legal issues
#Whether failure to factor pre-trial custody into sentence under s.333(2) CPC is a misdirection entitling the appellate court to interfere
Yes. The record did not show that the trial court took the remand period into account as legally required; to that extent the trial court misdirected itself and the appellate court was entitled to interfere, directing that the sentence account for the period from arraignment to release on bail.
Section 333(2) creates a mandatory obligation on the sentencing court to factor in time spent in remand custody. The record showed the appellants were in custody from June 2013 to November 2016. Although the twenty-year sentence was well below the statutory maximum of death and not excessive, the absence of any indication that the remand period was considered was a misdirection. The Court upheld the sentence but directed that it take account of the remand period.
Legal principles established
#- Section 333(2) of the Criminal Procedure Code mandatorily requires a sentencing court to take into account the period an accused spent in custody prior to sentence, by reducing the sentence proportionately.
- Taking time spent in custody into account means the imposed sentence is reduced proportionately by the period already spent in custody, though the principle is applied contextually.
Court orders
#- 1.The sentence of twenty years imprisonment imposed by the High Court is upheld
- 2.The sentences shall take into account the period from the appellants' arraignment in court until their release on bail in November 2016
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Migori
- HCCRC No. 71 of 2014
- Jurisdiction invoked
- First appeal against sentence under the Court of Appeal's appellate jurisdiction (Criminal Appeal; Penal Code s.203 as read with s.204; Criminal Procedure Code s.333(2))
Relief refused
#Setting aside of the sentence
The Court upheld the twenty-year sentence as it was significantly below the statutory maximum of death for murder and not excessive or disproportionate
Costs
No costs order made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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.
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.
Whereas we uphold the sentence imposed, we nonetheless direct their sentences will take into account the period from their arraignment in court until sometimes in November 2016, when they were each respectively released on bail.
Issues in the judgment
#Judgment states the appeal succeeds and the court is entitled to interfere, yet upholds the original sentence without quantifying any reduction.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marwa & another v Republic", Case Analysis (2025). Criminal Appeal 239 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2297/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.