[2021] KEHC 1496 (KLR)
The court found that the applicant was entitled to have the period spent in remand custody taken into account in the computation of his sentence, as required by Section 333(2) of the Criminal Procedure Code. The trial court had not considered this period, despite the applicant having remained in custody for 2 years...
Source-derived case information.
- Citation
- [2021] KEHC 1496 (KLR)
- Parties
- Applicant: Isaack Otieno Ochere; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E115 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Sentence Computation Under Section 333(2) of the Criminal Procedure Code
- Outcome
- application allowed
- Judges
- RE Aburili
- Legal Topics
- Sentencing, Remand Period Credit, Manslaughter, Section 333 2 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaack Otieno Ochere
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Sentence Computation Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in remand custody deducted from his sentence under Section 333(2) of the Criminal Procedure Code.
- 2 Whether the trial court erred by not considering the remand period during sentencing.
Ratio Decidendi
The court found that the applicant was entitled to have the period spent in remand custody taken into account in the computation of his sentence, as required by Section 333(2) of the Criminal Procedure Code. The trial court had not considered this period, despite the applicant having remained in custody for 2 years and 6 months due to inability to raise bail. The High Court therefore ordered that the 10-year sentence be computed from the date of arrest, ensuring compliance with statutory requirements and fairness in sentencing.
Court Disposition
application allowed
Orders
- The 10 years prison term shall be calculated from the date of arrest of the applicant.
- Orders accordingly.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISC. CRIMINAL APPLICATION NO. E115 OF 2021
CORAM: R.E. ABURILI, J
ISAACK OTIENO OCHERE.............APPLICANT
VERSUS
REPUBLIC.......................................RESPONDENT
(An Application arising from conviction and sentence
of the High Court at Siaya in Cr. Case No. 29 of 2015)
RULING
1. The applicant convict was sentenced to serve 10 years imprisonment vide Siaya HCR 29/2015 vide judgment delivered on and sentence passed on 26/7/2021.
2. The applicant was jointly charged with 3 others for the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. After a full trial, the applicant was found guilty of the charge of a lesser charge of Manslaughter and after a Presentence report and mitigations were considered, Makau J. sentenced him to serve 10 years imprisonment. He has not appealed. He now prays that this court does consider Section 333(2) of the Criminal Procedure Code because he as in remand custody for 2 years and 6 months pending trial.
3. The trial court record availed tome shows that the court granted bail to all the 4 accused persons but the 2nd accused who is the applicant herein remained in custody ostensibly because he could not raise the bail and bond terms.
4. There is no indication that he absconded bond. The sentence did not take into account the period spend in custody pending trial.
5. In the circumstances, and as the applicant has not appealed, I find his application merited. I order that the lawful sentence of 10 years imprisonment on the applicant though lenient enough, should have taken into account the period he was in custody. The trial court record is however not typed and therefore it is not easily discernible on what date he was arrested and neither does the information dated 12/5/2015 show and neither does the record show clearly when plea was taken in Kisumu High Court.
6. For the above reasons, I order that the 10 years prison term shall be calculated from the date of arrest of the convict/applicant herein.
7. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 16TH DAY OF NOVEMBER, 2021
R.E. ABURILI
JUDGE