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Court of AppealDismissedCriminal Appeal (not stated in judgment; arising from Kakamega High Court Criminal Case No. 42 of 2014)

Mukweyi v Republic (Criminal Appeal E101 of 2021) [2026] KECA 606 (KLR)

Court of Appeal of Kenya
13 March 2026
ASAsike-MakhandiaHOH.A. OmondiLKL. Kimaru
683 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a lighter sentence can count as credit for time spent in remand, even without a formal deduction.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Kisumu against sentence only, arising from the conviction and 14-year imprisonment sentence imposed by the High Court of Kenya at Kakamega (Njagi, J.) on the appellant, Alex Mukweyi, following his conviction for the murder of his eight-month-old step-daughter contrary to Section 203 as read with Section 204 of the Penal Code. The sole ground of appeal was that the learned Judge failed to consider the period the appellant spent in remand custody (allegedly since 10th June 2014) when computing the sentence, contrary to the proviso to Section 333(2) of the Criminal Procedure Code, which directs that time spent in custody prior to sentence shall be taken into account. The respondent did not oppose the appeal. The Court perused the trial court record and found that the learned Judge's pre-sentencing notes expressly recorded consideration of the circumstances of the offence, the mitigation, the probation report, and the fact that the accused had been in custody since 2014. From the fact that the Judge imposed 14 years rather than the statutory maximum of death, the Court inferred that the remand period was factored into the relatively lenient sentence. It held that the sentence was legally and properly imposed in line with the proviso to Section 333(2). The appeal was accordingly dismissed in a judgment delivered at Kisumu by a bench of Asike-Makhandia, H.A. Omondi and L. Kimaru, JJA, with no separate opinions and no costs order recorded.

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 failed to consider the period the appellant spent in remand custody when computing his sentence, as required by the proviso to Section 333(2) of the Criminal Procedure Code

Key legal issues

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01

Whether the proviso to Section 333(2) of the Criminal Procedure Code was satisfied

Holding

The appeal on sentence failed because the trial Judge's sentencing notes disclosed that the period spent in custody since 2014, the mitigation and the probation report were all considered, resulting in a 14-year sentence instead of the maximum death penalty.

Reasoning

Section 333(2) of the Criminal Procedure Code directs that time spent in remand custody be computed in the sentence. On a perusal of the trial record, the Judge's pre-sentencing notes expressly recorded that the accused had been in custody since 2014. The Court inferred from the reduced sentence of 14 years (as opposed to the maximum death penalty) that the remand period was factored into the sentence. The sentence was therefore lawful and properly imposed.

p. 2

Legal principles established

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  • Where a sentencing court expressly notes the accused's period in pre-conviction custody and imposes a sentence below the statutory maximum, it is taken to have complied with the proviso to Section 333(2) of the Criminal Procedure Code, even if it does not arithmetically deduct the remand period.

Court orders

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  1. 1.The appellant's appeal against sentence is dismissed

The bench

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

AS
majority
HO
majority
LK
majority
On appeal from
High Court of Kenya at Kakamega
Criminal Case No. 42 of 2014
Jurisdiction invoked
First appeal against sentence under the Court of Appeal's appellate jurisdiction (statutory appeal from the High Court; specific provision not stated in the judgment)

Relief refused

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Computation of the sentence to take account of the period spent in remand custody

The sentencing notes show the trial Judge expressly considered the period in custody since 2014 in imposing a reduced 14-year sentence

p. 2

Costs

No costs order made 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.

In the premises, the appellant’s appeal lacks merit and is hereby dismissed.
p. 2Final orders - dismissal of appeal against sentence
The trial Judge took into consideration the period the appellant was in remand custody hence the relative lenient custodial sentence.
p. 2Compliance with the proviso to Section 333(2) of the Criminal Procedure Code

Issues in the judgment

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minor

Date inconsistency: the appeal is from a judgment delivered on 30th July 2020, yet paragraph 4 states the appellant 'was sentenced by the trial court on 6th October, 2021', and the Court of Appeal judgment is dated 13th March 2026.

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, "Mukweyi v Republic (Criminal Appeal E101 of 2021) [2026] KECA 606 (KLR)", Case Analysis (2026). Criminal Appeal (not stated in judgment; arising from Kakamega High Court Criminal Case No. 42 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/606/eng@2026-03-13

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