David v Republic (Criminal Appeal E026 of 2025) [2026] KECA 1517 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a 20-year defilement sentence but ruled the prisoner's eight months in remand must count toward his time served.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court on second appeal has jurisdiction to interfere with the minimum sentence imposed by the trial court and confirmed by the High Court.
- 2.Whether the courts below erred on a point of law by failing to demonstrably take into account the period the appellant spent in custody before conviction.
Key legal issues
#Whether the Court of Appeal on second appeal can interfere with a lawful minimum sentence
It cannot; severity of sentence is a question of fact under Section 361(1)(a) CPC and only an unlawful sentence escalates the matter to one of law.
Section 361 of the Criminal Procedure Code confines second appeals to matters of law and expressly excludes severity of sentence, which is deemed a matter of fact. A sentence only becomes a question of law if it is unlawful. Here the twenty-year sentence was the statutory minimum prescribed by Section 8(3) of the Sexual Offences Act for defilement of a child aged twelve to fifteen, and the appellant had not urged before the High Court that it was unlawful or unconstitutional. The Court therefore declined to revisit it.
Failure to deduct the period spent in remand custody under Section 333(2) CPC
Both courts below erred; the mandatory obligation to account for pre-sentence custody was contravened, requiring the sentence to be computed from the date of arrest.
Section 333(2) CPC is couched in mandatory terms: where a sentenced person was held in custody before sentence, the sentence shall take account of that period. The Judiciary Sentencing Policy Guidelines (2023) and prior Court of Appeal decisions confirm that failure to deduct remand time results in disproportionate punishment, including for offences carrying minimum sentences. The appellant spent eight months and three days in remand; neither the trial court nor the High Court deducted this, contravening the section.
Filing of notices to enhance sentence outside the prescribed period
The Court allowed the State's withdrawal of the notice but cautioned that such notices must strictly comply with Rule 61(7) of the Court of Appeal Rules, 2022.
Rule 61(7) of the Court of Appeal Rules, 2022 requires a notice to enhance sentence to be given within one month of the sentence. The DPP filed the notice just before the hearing, which is inappropriate because it may induce an appellant to withdraw an appeal on a misplaced apprehension that the sentence might be enhanced. The Court had no issue with the withdrawal and allowed it.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to points of law and will not interfere with concurrent findings of fact or with the severity of sentence unless the sentence was unlawful.
- Section 333(2) of the Criminal Procedure Code imposes a peremptory, mandatory obligation on sentencing courts to expressly deduct the period spent in custody before sentence; failure to do so renders the sentence more severe than prescribed by law.
- Taking into account time spent in custody means reducing the imposed sentence proportionately by that period; it is not enough to state the period was considered while ordering the sentence to run from the date of conviction.
- Notices to enhance sentence by the DPP must be filed strictly within one month of the sentence under Rule 61(7) of the Court of Appeal Rules, 2022; filing such a notice just before a hearing is inappropriate.
Court orders
#- 1.The DPP's withdrawal of the Notice to enhance Sentence was allowed.
- 2.Conviction upheld and sentence of twenty years imprisonment confirmed.
- 3.The sentence of twenty years imprisonment shall be computed from the date of arrest, 7th September 2016, to account for the eight months and three days spent in remand custody under Section 333(2) of the Criminal Procedure Code.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Machakos
- Criminal Appeal No. 46 of 2018
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code (second appeal on a matter of law)
Relief refused
#Interference with the twenty-year minimum sentence on grounds of harshness and excessiveness
Severity of sentence is a matter of fact on second appeal under Section 361 CPC, and the twenty-year sentence is the lawful statutory minimum under Section 8(3) of the Sexual Offences Act.
Costs
No costs order was 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.
Accordingly, we uphold the conviction and confirm the sentence of twenty years imprisonment but direct that the said sentence shall be computed from the date of arrest, which is 7th September 2016. The Appeal thus partially succeeds to that limited extent.
It is thus imperative that the trial court in pronouncing any sentence must expressly and unequivocally deduct the period already in custody.
It follows, therefore, that the obligation under Section 333(2) of the Criminal Procedure Code to account for time spent in custody during trial is peremptory.
A second appeal must be confined to points of law. The Court of Appeal will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence, or misapprehension of the evidence, or the courts acted on wrong principles in reaching their findings.
Issues in the judgment
#The memorandum of appeal is described as undated, and the respondent's submissions are dated 13th March 2026, dates which cannot be independently verified from the judgment text; no contradiction within the judgment itself.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David v Republic (Criminal Appeal E026 of 2025) [2026] KECA 1517 (KLR)", Case Analysis (2026). Criminal Appeal (undated amended memorandum of appeal; appeal from Machakos High Court Criminal Appeal No. 46 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1517/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.