1.The applicant was charged with the offences of Defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act No.3 of 2006 vide Nakuru Criminal Case No. 97 of 2011. He was convicted and sentenced to 20 years’ imprisonment on 20th March, 2012.
2.He appealed to this court through Criminal Appeal No.61 of 2012 and his appeal was dismissed for lack of merit on 5th May, 2017.
3.Being dissatisfied with the decision of the High Court, he preferred an appeal before the Court of Appeal vide Criminal Appeal No.48 of 2017. However, on 4th July, 2023 he withdrew his Appeal.
4.The issue of the time of the commencement of the sentence was not canvassed during the appeal and so the learned Judge was not called upon to determine the issue now before the court.
5.The Applicant has now filed the instant Application pursuant to Section 333 (2) of the Criminal Procedure Code seeking for an order that his sentence be deemed to have commenced on the day he was first remanded.
6.The state does not oppose the Application.
7.Section 333(2) of the Criminal Procedure Code, states as follows:
8.It has been stated that in invoking section 333(2) of the Criminal Procedure Code, the court is not required to embark on an arithmetic journey to calculate time to be spent in custody. In the case of Bukenya vs. Uganda (Criminal Appeal No. 17 of 2010)  UGSC 3 (29 January 2013) it was held that;
9.It is my understanding of the above decision that the court is only required to take account of the time spent in remand custody.
10.The provisions of section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & Another vs Republic eKLR where the Court of Appeal held that:-
11.The same court in Bethwel Wilson Kibor vs Republic  eKLR expressed itself as follows:-
12.The Judiciary Sentencing Policy Guidelines provide as follows:
13.I have perused the trial court record and I note that the trial court meted the sentence against the Appellant without specifically stating the period which it was to commence. This means that the applicant’s term commenced on the day he was sentenced. This left out the period that he had spent in remand custody, prior to his conviction and sentencing.
14.In the case of Osman Mohamed Balagha v Republic  eKLR Aroni J. noted that ;
15.I am therefore of the view that the trial court failed to comply with the mandatory provisions of the said section 333(2) of the CPC.
16.The trial court record shows that the Applicant was first arraigned in Court on 8th June,2011. He was in remand custody throughout the trial.
17.I therefore correct the error and order that the applicant’s sentence ought to have commenced from this date of 8th July, 2011. It is so ordered.