From remand to prison: Court upholds 7-year sentence for attempted murder

The Court of Appeal has dismissed an appeal by a convict who had sought a reduction of his seven-year sentence for attempted murder.

The appeal was on the grounds that the trial court failed to consider the two years and seven months he had spent in remand custody.

In a judgment delivered on July 18, 2025, the appellate court ruled that there was no error on the part of the High Court in rejecting the revision application by the appellant, Nicholas Koech.

The three-judge bench comprising Justices Gatembe Kairu, Agnes Murgor, and Dr Kibaya Imaana Laibuta found that Koech had not demonstrated that the trial court had failed to take into account his remand period when passing the sentence.

“The appeal fails and is accordingly dismissed,” the judges ruled.

Man convicted for attempted murder

Koech had been convicted by a magistrate’s court for attempted murder, a charge under Section 220 of the Penal Code, which carries a maximum sentence of life imprisonment.

He was sentenced to seven years in prison.

Instead of filing a formal appeal against the sentence, he approached the High Court in Malindi seeking revision, arguing that his pre-sentencing time in remand had not been considered.

The High Court, presided over by Justice SM Githinji, dismissed the application.

The judge ruled that although the trial court may not have expressly stated it, the period in remand had likely been considered, especially since the sentence imposed was far below the maximum.

“The offence of attempted murder carries a maximum of life imprisonment,” Justice Githinji had observed.

“The applicant herein was sentenced to seven years' imprisonment. He argues that the period spent in remand was not weighed.”

“He, however, does not reveal what was weighed, that he never got the maximum sentence for the felony. The period must have counted even if the trial court may not have expressed so in writing.”

The High Court therefore found the application to lack merit and dismissed it.

Appeal before Court of Appeal

Koech, through his lawyer Eric Kuria, challenged the High Court's decision at the Court of Appeal.

During a virtual hearing on February 24, 2025, Kuria argued that Koech had spent exactly two years, seven months and seven days in custody before his sentencing, and that this period should have been deducted from his prison term.

He further submitted that under Section 333(2) of the Criminal Procedure Code, trial courts are obligated to factor in time spent in custody while computing sentences.

Citing the landmark case, counsel argued that “taking into account” the time in custody means a proportional reduction in sentence, not just a mention.

“It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction,” Kuria submitted.

He also suggested that his client ought to have benefited from remission by the prison authorities.

State counsel counters appeal

In response, State Counsel Ms Nyawinda defended the High Court’s ruling.

She noted that the seven-year sentence was already lenient, given the seriousness of the offence.

She also pointed out that Koech had not presented any evidence of the actual period he had spent in custody.

“There is no basis for interfering with the decision by the learned judge,” she told the Court.

Court’s reasoning and final ruling

The appellate bench acknowledged the legal obligation under Section 333(2) of the Criminal Procedure Code for trial courts to consider remand time.

However, the judges emphasised that Koech had not provided sufficient proof that this was not done.

Furthermore, they noted that he never appealed the sentence directly, which limited his legal options.

“The appellant did not demonstrate before the High Court that the trial court did not, in sentencing, take into account time spent in remand custody,” the ruling read.

“It has not been shown that the High Court wrongly exercised its discretion in declining to exercise its revisional jurisdiction in favour of the appellant.”

The Court added that Koech’s revision application appeared to be caught by Section 364(5) of the Criminal Procedure Code, which bars a party from seeking revision when an appeal was available but not pursued.

With the dismissal of his appeal, Nicholas Koech will serve the full seven-year sentence handed to him by the trial court. He remains in custody at Manyani Prison.