[2023] KEHC 17824 (KLR)
The court found that the petitioner was arrested on June 15, 2018, and although bond was granted, he did not secure release as the surety provided was for a different accused in another case. There was no evidence to the contrary that the petitioner was released on bond at any time prior to sentencing on May 8,...
Source-derived case information.
- Citation
- [2023] KEHC 17824 (KLR)
- Parties
- Applicant: Joseph Odhiambo Ayoo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E005 of 2023
- Procedural Posture
- Criminal Petition / Judgment
- Outcome
- petition allowed
- Judges
- RE Aburili
- Legal Topics
- Sentence Review, Custodial Sentence, Pretrial Custody Credit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Odhiambo Ayoo
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to have the period spent in custody prior to sentencing considered in the computation of his sentence.
- 2 Whether the sentence should be recalculated to account for pretrial detention as per Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the petitioner was arrested on June 15, 2018, and although bond was granted, he did not secure release as the surety provided was for a different accused in another case. There was no evidence to the contrary that the petitioner was released on bond at any time prior to sentencing on May 8, 2019. Therefore, the court held that the period spent in custody pending trial must be considered in the computation of the sentence, as required by Section 333(2) of the Criminal Procedure Code. The court ordered that the seven-year sentence imposed on the petitioner be calculated from the date of arrest, June 15, 2018, thus crediting the time already spent in custody towards the...
Court Disposition
petition allowed
Orders
- The seven (7) years imprisonment imposed on the petitioner shall be calculated from June 15, 2018, the date of his arrest.
- File closed.
Full Case Text
Judgment text and source record
25 paragraphs
Ayoo v Republic (Criminal Petition E005 of 2023) [2023] KEHC 17824 (KLR) (22 May 2023) (Judgment)
Neutral citation: [2023] KEHC 17824 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Petition E005 of 2023
RE Aburili, J
May 22, 2023
Between
Joseph Odhiambo Ayoo
Petitioner
and
Republic
Respondent
Judgment
(From original conviction and sentence in Senior Principal Magistrate’s Court Criminal Case No 375 of 2018 at Winam) 1. The Applicant/Petitioner herein is a convict vide Winam SPM Criminal Case No 375 of 2018. He was convicted and sentenced on May 8, 2019 for the offence of grievous harm contrary to Section 234 of the Penal Code.
2. He was sentenced to serve seven (7) years imprisonment by Hon B Kasavuli, SRM.
3. He filed a Petition for Sentence Review vide HCCR Application No E122 of 2022 which was dismissed as it was not supported by any court proceedings. This was on March 28, 2023. He has now filed a petition supported by affidavit, charge sheet and court proceedings in Winam SPM Criminal Case No 375 of 2018.
4. He seeks for sentence reduction taking into account the provisions of Section 333(2) of the Criminal Procedure Code, being the period that he spent in custody pending trial and sentencing.
5. I have considered the Petition dated May 16, 2013 under Certificate of Urgency. I am satisfied that from the proceedings and charge sheet, the Petitioner was arrested on June 15, 2018 and that although he was granted bond of Kshs 100,000 plus one surety of similar amount on June 18, 2018 the date of plea, he never raised the surety.
6. The proceedings relating to the surety who was sworn on July 2, 2018 were set aside suo moto by the trial magistrate as the court discovered that the surety was for a different accused person in Criminal Case No 383 of 2018 and not Criminal Case No 375 of 2018.
7. As there is no other contrary evidence that the Petitioner herein was not released on bond pending trial and sentence on May 8, 2019, I find this Petition to be merited. I allow it and order that the seven (7) years imprisonment imposed on the Petitioner herein shall be calculated from June 15, 2018 the date of his arrest.
8. Signal to issue.
9. I so order.
10. File closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 22ND DAY OF MAY, 2023R. E. ABURILIJUDGE