[2021] KEHC 9469 (KLR)
The court found that the applicants' resentencing failed to consider the period they spent in remand custody, which is a mandatory requirement under Section 333(2) of the Criminal Procedure Code. The court further held that the applicants are entitled to the benefit of the least severe punishment as provided by...
Source-derived case information.
- Citation
- [2021] KEHC 9469 (KLR)
- Parties
- Applicant: James Abiero Makata; Applicant: David Ongayi Alela; Applicant: Tom Odhiambo Omware; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E021 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling
- Outcome
- petition allowed in part
- Judges
- RE Aburili
- Legal Topics
- Sentencing Review, Remand Custody Credit, Robbery With Violence, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Abiero Makata
Applicant
David Ongayi Alela
Applicant
Tom Odhiambo Omware
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling
Legal Issues
- 1 Whether the period spent in remand custody should be considered in resentencing the applicants for the offence of robbery with violence.
- 2 Whether failure to account for remand custody contravenes Section 333(2) of the Criminal Procedure Code and Article 50(2)(p) of the Constitution.
Ratio Decidendi
The court found that the applicants' resentencing failed to consider the period they spent in remand custody, which is a mandatory requirement under Section 333(2) of the Criminal Procedure Code. The court further held that the applicants are entitled to the benefit of the least severe punishment as provided by Article 50(2)(p) of the Constitution. Consequently, the court ordered that the applicants' sentences be recalculated to commence from the date of their arrest, thereby taking into account the period already served in remand custody prior to conviction and sentencing. This ensures compliance with statutory and constitutional requirements regarding sentencing and the rights of...
Court Disposition
petition allowed in part
Orders
- The respective prison sentences imposed on the petitioners shall be calculated from the date of their arrest, taking into account the period spent in remand custody prior to conviction and sentencing.
- The file is closed.
Full Case Text
Judgment text and source record
20 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
MISCELLEANOUS CRIMINAL APPLICATION NO. E021 OF 2020
JAMES ABIERO MAKATA....................................................................1ST APPLICANT
DAVID ONGAYI ALELA........................................................................2ND APPLICANT
TOM ODHIAMBO OMWARE................................................................3RD APPLICANT
VERSUS
REPUBLIC................................................................................................. RESPONDENT
RULING
1. I have considered the application by the 3 applicants herein James Abiero Makata, David Ongayi Alela and Tom Odhiambo Omware, serving prison term at Siaya G.K. Prison. I note that the Petitioners have exhausted their right of appeal and were resentenced to serve 25 years, 30 years and 20 years imprisonment respectively for the offence of Robbery with Violence but the resentencing never took into account the period spend in remand custody contrary to Section 333(2) which provides that in sentencing, the trial court should take into account the period spend in remand custody where the accused was not on bond.
2. In this case, the offence of Capital Robbery was not bailable prior to 2010. The trial of the Petitioners took place in 2003, up to 2009 when the appeals were dismissed.
3. Under Article 50(2) (P) of the Constitution, an accused person/convict has a right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been charged between the time that the offence was committed and the time of sentencing ,and to apply for review by a higher court, as prescribed by law.
4. Considering that the term sentences as re-imposed on the petitioners did not take into account the period served in prison remand and as such period would accord the petitioners the benefit of the least served of the prescribed punishment for the offence of Robbery with Violence, I order that the respective prison sentences as imposed on the petitioners herein shall be calculated from the date of arrest of the petitioners before they were tried, taking into account the period they spent in prison custody prior to their convictions and sentences in the trial court.
5. The Petition is therefore allowed to the extend stated above.
6. This file is closed.
7. Orders accordingly.
Dated, Signed and Delivered at Siaya this 19th day of January, 2021
R.E. ABURILI
JUDGE