[2023] KEHC 3102 (KLR)
The court found that the applicants' request for probation was without merit because the issue of time spent in custody had already been addressed during resentencing, as per Section 333(2) of the Criminal Procedure Code. The court had previously exercised discretion by reducing the sentence from death to thirty...
Source-derived case information.
- Citation
- [2023] KEHC 3102 (KLR)
- Parties
- Applicant: Joseph Akweywa Indeche; Applicant: Joshua Mboya Ashikanga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E003 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Resentencing/probation
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Resentencing, Murder Conviction, Probation Application, Section 333 2 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Akweywa Indeche
Applicant
Joshua Mboya Ashikanga
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Resentencing/probation
Legal Issues
- 1 Whether the applicants are entitled to have the remainder of their sentence served on probation after resentencing for murder.
- 2 Whether the period spent in custody has already been considered under Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the applicants' request for probation was without merit because the issue of time spent in custody had already been addressed during resentencing, as per Section 333(2) of the Criminal Procedure Code. The court had previously exercised discretion by reducing the sentence from death to thirty years' imprisonment, taking into account all relevant factors. There was no new evidence or justification, such as testimonials or recommendations from prison authorities, to warrant further leniency or a non-custodial sentence. The application was deemed mischievous and dishonest, especially considering the gravity of the offence and the fact that the applicants had already...
Court Disposition
application dismissed
Orders
- The application for the remainder of the sentence to be served on probation is dismissed.
- File closed.
Full Case Text
Judgment text and source record
24 paragraphs
Indeche & another v Republic (Miscellaneous Criminal Application E003 of 2023) [2023] KEHC 3102 (KLR) (28 March 2023) (Ruling)
Neutral citation: [2023] KEHC 3102 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E003 of 2023
RE Aburili, J
March 28, 2023
Between
Joseph Akweywa Indeche
1st Applicant
Joshua Mboya
2nd Applicant
and
Republic
Respondent
Ruling
1. The Applicants herein Joseph Akweywa Indeche and Joshua Mboya Ashikanga were convicted of the offence of murder and sentenced to death vide Kakamega HCCRC No 7 of 2005. They appealed to the Court of Appeal vide Kisumu Court of Appeal Criminal Appeal No 371 of 2012 which appeal was dismissed.
2. They petitioned this court for resentencing vide Criminal Petition No. 12 of 2020 which petition was allowed vide judgement rendered on 26th October 2021 where death sentence was reviewed to thirty (30) years imprisonment.
3. Paragraph 29 of the said judgment states:-“29 –It is hereby ordered and directed that the period the petitioners spent in custody, if at all, shall be taken into account when computing their sentences in accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).”
4. The court having pronounced itself on sentence under Section 333(2) of the Criminal Procedure Code, I find this application to be extremely mischievous and that the applicants are dishonest in their application knowing very well that an innocent life was lost through their bloody hands and that they escaped the hangman’s noose courtesy of the discretion exercised by this court.
5. The application that they now want the remainder of sentenced served out on probation does not make any sense in the interest of justice as there is even no evidence by way of testimonials or recommendations from the prison authorities.
6. I find this application filed on 16th February 2023 devoid of any merit. It is hereby dismissed.
7. File closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 28TH DAY OF MARCH, 2023R. E. ABURILIJUDGE