[2021] KEHC 3836 (KLR)
The court found that the applicant's claim of having spent six years in remand custody was false, as the period between 1 January 2015 and 25 February 2016 is approximately one year. The applicant failed to provide credible evidence to support his assertions, and his affidavit was found to be dishonest. The court...
Source-derived case information.
- Citation
- [2021] KEHC 3836 (KLR)
- Parties
- Applicant: Albert Otieno Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E099 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Sentence Review Application Before the High Court
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentence Review, Defilement Offence, Remand Period Credit, False Affidavit, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albert Otieno Onyango
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Sentence Review Application Before the High Court
Legal Issues
- 1 Whether the applicant is entitled to a review of his sentence based on the period allegedly spent in remand custody.
- 2 Whether the applicant's rights under Article 28 and 50(2) of the Constitution were violated by not considering the remand period.
- 3 Whether the applicant provided truthful and sufficient evidence to support his claims.
Ratio Decidendi
The court found that the applicant's claim of having spent six years in remand custody was false, as the period between 1 January 2015 and 25 February 2016 is approximately one year. The applicant failed to provide credible evidence to support his assertions, and his affidavit was found to be dishonest. The court held that there was no violation of the applicant's constitutional rights, as he was lawfully sentenced and the period in remand was not as claimed. The court further noted that the applicant did not clarify whether he appealed the conviction or sentence, or whether the appellate court considered the remand period. Due to the applicant's dishonesty and lack of merit in the...
Court Disposition
application dismissed
Orders
- The application dated 27/5/2021 is dismissed.
- File closed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISC. CRIMINAL APPLICATION NO. E099 OF 2021
CORAM: HON. R.E. ABURILI, J
ALBERT OTIENO ONYANGO.........................................................APPLICANT
VERSUS
REPUBLIC........................................................................................RESPONDENT
(Being an Application for Sentence Review against sentence in Siaya Principal Magistrate’s Court in Cr. Sexual Office Case No. 1 of 2015)
RULING
1. The applicant Albert Otieno Onyango in his application filed on 27/8/2021 claims that he was convicted and sentenced to serve (10) years imprisonment for the offence of defilement contrary to Section 11(1) of the Sexual Offences Act; in Siaya PM Cr. SO 1/2015. He claims that he was in prison remand custody from 1. 1.2015 until he was convicted on 25. 2.2016.
2. Even assuming that that is the case, the question is where does the 6 years in remand custody arise as claimed that he spent in prison.
3. The applicant is a dishonest person who wants to escape justice meted out on him. He has not stated whether he appealed and if so, whether the appellate court considered that fact of period in remand.
4. No evidence has been adduced to prove his claims which are exaggerated and as he was lawfully sentenced then the question of violation of his right to fair trial and dignity under Article 28 and 50(2) of the Constitution does not arise.
5. He swore an affidavit falsely claiming that he was in remand for 6 years yet from 1. 1.2015 to 25. 2.2016 is just about one year.
6. In view of the dishonesty on the part of the convict application, I find that he is not deserving of any discretion of the court as it is not clear whether he was on bond or he is lying to the court to escape justice.
7. For the above reasons, I find the application dated 27/5/2021 devoid of any merit. The same is hereby dismissed.
8. File closed.
9. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 22ND DAY OF SEPTEMBER 2021
R.E. ABURILI
JUDGE