[2020] KEHC 6239 (KLR)
The court found that the trial magistrate, when passing sentence on 22.2.2017, had already taken into account the period the applicant spent in custody awaiting trial. The lower court proceedings confirmed this consideration. Therefore, the application for review of sentence lacked merit as the legal requirement...
Source-derived case information.
- Citation
- [2020] KEHC 6239 (KLR)
- Parties
- Applicant: Erick Ochieng Ooko; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 371 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Legal Topics
- Sentencing Review, Remand Custody Credit, Sexual Offences, Application of Section 333 2, Gang Rape, Sentence Commencement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Ochieng Ooko
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the sentence imposed on the applicant should be reviewed to account for the period spent in remand custody awaiting trial.
- 2 Whether the trial magistrate considered the period spent in custody when passing sentence.
Ratio Decidendi
The court found that the trial magistrate, when passing sentence on 22.2.2017, had already taken into account the period the applicant spent in custody awaiting trial. The lower court proceedings confirmed this consideration. Therefore, the application for review of sentence lacked merit as the legal requirement under section 333(2) of the Criminal Procedure Code had been satisfied. The court dismissed the application and ordered that the applicant serve his sentence as originally imposed by the trial court.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
- The applicant shall serve his sentence as ordered by the trial court.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL DIVISION
MISC. CRIMINAL APPLICATION CASE NO. 371 OF 2019
ERICK OCHIENG OKELO......APPLICATION
VERSUS
REPUBLIC.................................RESPONDENT
RULING
The applicant, Erick Ochieng Ooko, filed this present applicant on 19. 7.2019. The applicant seeks an order of review of the sentence meted against the applicant by the trial court. That the said sentence ought to account for the period that the applicant spent in remand custody awaiting trial. Though it is not stated under which provision of the law this application has been brought, I am convinced that the same is brought under section 333(2) of the Criminal Procedure Code. The same stipulates:
Section 333(2) subject to the provisions of section 38 of the Penal Code, every sentence shall be deemed to commence from and to include the whole of the day of the date on which it was pronounced, except where otherwise provided in this code.
Provided that the person sentenced under sub-section 1 has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody
The application is obviously based on the proviso to the said section 333(2), the sentence ought to account for the period one has spent in custody awaiting the determination of his case. To this extent the learned counsel for the prosecution, who responded to the application without the benefit of typed proceedings from the lower court, conceded that they would not object to the application if indeed the period spent in custody was not accounted for in the sentence.
I only note that the issue of typed and or certified proceedings of the lower court was already settled herein on 30. 1.2020, when the court made an order that those proceedings need not be typed.
The applicant was tried for an offence of Gang Rape contrary to section 10 of the sexual offences Act, No. 3 of 2006. After full trial he was convicted and sentenced to serve 10 years imprisonment. According to the section of the law under which the applicant was convicted and sentenced, the applicant was liable to a sentence of not less than 15 years imprisonment, but which could be enhanced to imprisonment for life. The proceedings of the lower court clearly indicate that on passing the sentence on 22. 2.2017, the trial magistrate took into account the period that the applicant had taken in custody awaiting trial.
The trial magistrate having considered the period the applicant spent in custody, this application by the applicant lacks any merit. I dismiss the same and order that the applicant do serve his sentence as ordered by the trial court.
OGEMBO D. O.
JUDGE
8. 5.2020
Court:
Ruling read out by not visible the Skype in presence of the applicant and Ms. Chege for the Republic.
OGEMBO D. O.
JUDGE
8. 5.2020