[2021] KEHC 8198 (KLR)
The court held that while applicants are entitled to have the period spent in custody during trial considered in the computation of their sentence under Section 333(2) of the Criminal Procedure Code, the applicants failed to provide sufficient material or evidence to enable the court to determine whether they were...
Source-derived case information.
- Citation
- [2021] KEHC 8198 (KLR)
- Parties
- Applicant: Emmanuel Ochieng Owuondo; Applicant: Isaac Ndira Osore; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 33 of 2020
- Procedural Posture
- Criminal Application / Ruling on Application Regarding Computation of Sentence
- Outcome
- Application declined due to lack of sufficient material to make a definitive finding.
- Legal Topics
- Sentencing Procedure, Custodial Period Credit, Narcotic Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Ochieng Owuondo
Applicant
Isaac Ndira Osore
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Application Regarding Computation of Sentence
Legal Issues
- 1 Whether the period spent in custody by the applicants during trial should be taken into account in computing their sentence.
- 2 Whether sufficient material was provided to enable the court to determine the period to be credited.
Ratio Decidendi
The court held that while applicants are entitled to have the period spent in custody during trial considered in the computation of their sentence under Section 333(2) of the Criminal Procedure Code, the applicants failed to provide sufficient material or evidence to enable the court to determine whether they were in custody after being granted bond or whether the Court of Appeal had already considered the custodial period. In the absence of such material, the court declined to make a definitive pronouncement on the date from which the sentence should be calculated.
Court Disposition
Application declined due to lack of sufficient material to make a definitive finding.
Orders
- No order is made regarding the date from which the sentence should be calculated.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL APPLICATION NO. 33 OF 2020
EMMANUEL OCHIENG OWUONDO ...... 1ST APPLICANT
ISAAC NDIRA OSORE ................................2ND APPLICANT
-VERSUS-
REPUBLIC ........................................................ RESPONDENT
RULING
The Applicants, EMMANUEL OCHIENG OWUONDOaliasSAMUEL OCHIENG OTIENOand ISAAC NDIRA OSORE were convicted for the offence of Trafficking in Narcotic Drugscontrary to Section 4 (A)of the Narcotic and Psychotropic Substances Control Act No. 4 of 1994. Each of them was then sentenced to Life Imprisonment.
1. When they appealed to the High Court, the convictions and sentences were upheld.
2. Thereafter, the Applicants appealed to the Court of Appeal. They have informed this court that the Court of Appeal allowed their respective appeals against the sentences, and substituted the Life Imprisonment with 10 Years Imprisonment.
3. It is well settled that pursuant to Section 333 (2)of the Criminal Procedure Code, the court ought to take into account the period which an accused was held in custody, during his trial.
4. It is important to emphasize that when a convict was sentenced to imprisonment, it was not automatic that the trial court will order that the sentence shall run from the date when the said convict was arrested.
5. The court is required to take into account the period which the convict was held in custody.
6. It therefore follows that if an accused person was granted Bond or Bail during the period when he was on trial, the court would not be expected to order that the period of imprisonment should run from the date when the said accused was arrested.
7. Having perused the record of the proceedings, I note that the Applicants were granted Bond on 2nd May 2014. The Applicants have not provided the court with information that I can use to verify if they or either of them was in custody after the trial court granted them bond.
8. Secondly, the Applicants did not provide this court with a copy of the Judgment of the Court of Appeal. Therefore, I am unable to verify whether or not the said Court took into account any period which the applicants may have spent in custody, when they were still on trial.
9. In the circumstances, whilst I appreciate that the Applicants would be entitled an order that the period they spent in custody during their trial should be taken into account when calculating the actual period from when the sentence should start running; I find myself hampered by the lack of material upon which I can make definitive findings.
10. Accordingly, I refrain from making any definitive pronouncement concerning the date from when the sentence ought to be calculated.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 16TH DAY OF MARCH 2021
FRED A. OCHIENG
JUDGE