[2022] KEHC 14387 (KLR)
The court found itself unable to determine whether the trial court complied with section 333(2) of the Criminal Procedure Code because neither the original trial record nor the judgment was available, and the prosecution did not respond to the application. In the absence of these critical materials, the court could...
Source-derived case information.
- Citation
- [2022] KEHC 14387 (KLR)
- Parties
- Applicant: Caleb Oluhambio Jairo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Vihiga
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 6 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Judgment
- Outcome
- petition dismissed
- Judges
- PJO Otieno
- Legal Topics
- Sentencing Computation, Pretrial Custody Credit, Section 333 2 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caleb Oluhambio Jairo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Judgment
Legal Issues
- 1 Whether the sentence imposed on the applicant should be computed to include the period spent in custody pending trial under section 333(2) of the Criminal Procedure Code.
- 2 Whether the trial court complied with section 333(2) in sentencing the applicant.
Ratio Decidendi
The court found itself unable to determine whether the trial court complied with section 333(2) of the Criminal Procedure Code because neither the original trial record nor the judgment was available, and the prosecution did not respond to the application. In the absence of these critical materials, the court could not ascertain if the period spent in custody was considered during sentencing. Furthermore, the applicant's sentence had already expired by the time of this judgment, rendering the petition moot and incapable of providing any effective remedy. The petition was therefore dismissed for want of evidence and because the issue had been overtaken by events.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
Jairo v Republic (Miscellaneous Criminal Application 6 of 2021) [2022] KEHC 14387 (KLR) (18 October 2022) (Judgment)
Neutral citation: [2022] KEHC 14387 (KLR)
Republic of Kenya
In the High Court at Vihiga
Miscellaneous Criminal Application 6 of 2021
PJO Otieno, J
October 18, 2022
Between
Caleb Oluhambio Jairo
Petitioner
and
Republic
Respondent
Judgment
1. In the petition, the petitioner seeks an order that the sentence of 3 years imposed against him petitioner for the offence of House Breaking and Committing a Felony therein, be computed to include the period spent in custody pending trial.
2. No copy of that judgment was exhibited to help the court determine when it was to commence and also determine whether the petitioner was ever granted bail and if not if the period spent in custody pending trial was ever reckoned with.
3. The prosecution did not make the situation better when no response was ever filed to the application. Not even the Deputy Registrar was able to avail the original record at trial.
4. In the absence of that critical information, it is impossible for the court to make a determination on that very important question of law whether section 333(2) was complied with by the trial court. I would disallow the petition in the basis alone.
5. However, in the affidavit in support, the petitioner confirms that the sentence was due to terminate on the 12. 2.2022. That is now some six months in the past. In effect the petition has been overtaken by events. Any grievance by the petitioner regarding section 333(2) may now not be remedied by this petition but may be in a different forum.Accordingly, the petition is dismissed.
DATED, SIGNED AND DELIVERED AT VIHIGA, THIS 18TH DAY OF OCTOBER 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the ApplicantNo appearance for the RespondentCourt Assistant: Juma