1.The Applicant herein was tried and convicted of the offence of attempted rape contrary to Section 4 of the Sexual Offences Act No 3 of 2006. He was sentenced to five (5) years imprisonment. He had asserted that the same was to run from the date of conviction to wit, 22nd August 2022.
2.On 19th September 2022, he filed this application on review of sentence pursuant to Section 333(2) of the Criminal Procedure Code. In his said application that was supported by his Affidavit, he averred that the Trial Court did not consider the period of one (1) year eight (8) months and twenty (20) days that he spent in custody during trial. He pointed out that this was from 1st December 2020 to 22nd August 2022.
3.He cited the case of Ahamad Albofathi Mohammed & Another vs Republic  eKLR where the court held that sentence ought to run from the date of arrest. He thus urged this court to grant him the orders he had sought.
4.He did not file Written Submissions to support his prayer. The Respondent was not opposed to the said application and did not therefore file any Written Submissions.
5.As seen hereinabove, the Applicant’s application was based on Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). The said Section provides that:
6.This duty is also contained in the Judiciary Sentencing Policy Guidelines (under clauses 7.10 and 7.11) where it is provided that: -
7.The duty to take into account the period an accused person had remained in custody before sentencing pursuant to Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another vs Republic (Supra).
8.Although the Applicant indicated that he was arrested on 1st December 2020, a perusal of the Charge Sheet showed that he was arrested on 3rd December 2020. This court therefore adopted the date of 3rd December 2020 as the date of his arrest. He was convicted on 28th July 2022 and sentenced on 22nd August 2022. He was granted bail. However, he did not appear to have come out on bond/bail while his trial was going on. He thus spent one (1) year eight (8) months and seventeen (17) days in custody before he was convicted.
9.A further reading of the Trial Court’s Sentence showed that it did not take into consideration the time he spent in remand before conviction and sentencing. This court was therefore convinced that this was a suitable case for it to exercise its discretion and grant the orders sought.
10.For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s application for review that was filed on 19th September 2022 was merited and the same be and is hereby allowed.
11.It is hereby ordered that the time the Applicant spent in custody between 3rd December 2020 and 21st August 2022 as the trial was ongoing be and is taken into consideration when computing his sentence as provided in Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
12.It is so ordered.