[2023] KEHC 3142 (KLR)
The court found that the applicant's request to have the period spent in custody counted towards his sentence had already been addressed and affirmed by the appellate court in the judgment delivered on February 23, 2022. The appellate judge had explicitly directed that any period spent in custody prior to sentencing...
Source-derived case information.
- Citation
- [2023] KEHC 3142 (KLR)
- Parties
- Applicant: Joseph Juma Amollo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E005 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Post Conviction Application
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Defilement Offence, Sentencing Principles, Computation of Sentence, Section 333 2 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Juma Amollo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Post Conviction Application
Legal Issues
- 1 Whether the period spent in custody prior to sentencing should be considered in computing the applicant's term of imprisonment under Section 333(2) of the Criminal Procedure Code.
- 2 Whether the application to set aside the sentence is merited after the appeal was dismissed and sentence affirmed.
Ratio Decidendi
The court found that the applicant's request to have the period spent in custody counted towards his sentence had already been addressed and affirmed by the appellate court in the judgment delivered on February 23, 2022. The appellate judge had explicitly directed that any period spent in custody prior to sentencing be taken into account as required by Section 333(2) of the Criminal Procedure Code. Therefore, the present application was deemed misguided and an abuse of court process, as the issue had already been conclusively determined. The court dismissed the application and ordered that the previous orders be served upon the applicant at Kisumu Maximum Prison.
Court Disposition
application dismissed
Orders
- The application filed on February 16, 2023 is dismissed.
- The order of February 23, 2022 in HCCRA No 2 of 2019 and this order to be served upon the applicant at Kisumu Maximum Prison via email through Prisons authorities.
Full Case Text
Judgment text and source record
24 paragraphs
Amollo v Republic (Miscellaneous Criminal Application E005 of 2023) [2023] KEHC 3142 (KLR) (12 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3142 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E005 of 2023
RE Aburili, J
April 12, 2023
Between
Joseph Juma Amollo
Applicant
and
Republic
Respondent
Ruling
1. The Applicant herein Joseph Juma Amollo was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act vide Kisumu Chief Magistrate Sexual Offences Case No 472 of 2013.
2. He was sentenced to serve twenty (20) years imprisonment on November 29, 2017. He appealed vide Kisumu HCCRA No 2 of 2019 which appeal was heard and determined on merit and dismissed vide judgment delivered on February 23, 2022 by my predecessor Judge.
3. In the said Judgment which is now before me, the learned Judge dismissed the appeal against sentence which was affirmed. The judge stated as follows:“For the avoidance of doubt, any period the appellant may have spent in custody prior to his sentences shall be taken into account while computing his term of imprisonment as provided in Section 333(2) of the Criminal Procedure Code Cap 75 (Law of Kenya).”
4. The Convict is back to this court vide this application filed on February 16, 2023 seeking for setting aside of sentence of twenty (20) years imprisonment and that this court counts the duration of the trial as part of the applicant’s imposed sentence in line with the requirements of Section 333(2) of the Criminal Procedure Code.
5. I find this application to be an abuse of court process and is misguided.
6. The application filed on February 16, 2023 is hereby dismissed.
7. This order and the order of February 23, 2022 in HCCRA No 2 of 2019 to be served upon the applicant at Kisumu Maximum Prison via email through Prisons authorities.
8. This file is hereby closed.
9. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 12THDAY OF APRIL, 2023R. E. ABURILIJUDGE