[2021] KEHC 3903 (KLR)
The court held that in the absence of the lower court record or any evidence showing that the applicant was not released on bail or did not abscond, it could not grant the orders sought. The applicant failed to discharge the burden of proof required to justify sentence review under Section 333(2) of the Criminal...
Source-derived case information.
- Citation
- [2021] KEHC 3903 (KLR)
- Parties
- Applicant: James Odongo Owala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Constitutional Application E086 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Sentence Review Application
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentence Review, Remand Period Credit, Sexual Offences, Application of Section 333 2, Conviction Without Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Odongo Owala
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Sentence Review Application
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in remand deducted from his sentence under Section 333(2) of the Criminal Procedure Code.
- 2 Whether sufficient evidence was provided to show the applicant was not released on bail or did not abscond during trial.
Ratio Decidendi
The court held that in the absence of the lower court record or any evidence showing that the applicant was not released on bail or did not abscond, it could not grant the orders sought. The applicant failed to discharge the burden of proof required to justify sentence review under Section 333(2) of the Criminal Procedure Code. Consequently, the application was dismissed for want of supporting evidence.
Court Disposition
application dismissed
Orders
- The application for sentence review is dismissed.
- The file is marked as closed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISC. CRIMINAL APPLICATION NO. E086 OF 2021
CORAM: HON. R.E. ABURILI, J
JAMES ODONGO OWALA.......................................................................APPLICANT
VERSUS
REPUBLIC..............................................................................................RESPONDENT
(Being an Application for Sentence Review against sentence in Ukwala Senior Resident Magistrate’s Court in Cr. Case No. 234 of 2015)
RULING
1. In his application filed on 1/7/2021, James Odongo Owala seeks for orders that this court do take into account the period of 6 months he spent in prison remand prior to his sentencing in calculating the sentence imposed on him by the trial court.
2. The applicant claims that he was convicted for the offence of attempted defilement contrary to Section 9(1)(2) of the Sexual Offences Act and was sentenced to serve 10 years imprisonment on 10/11/2015 by Ukwala SRM’s court. He has not appealed as there is no evidence of such appeal. He claims that in sentencing him, the trial court did not apply Section 333(2) of the Criminal Procedure Code to ensure that the sentence runs from the date of arrest. Under the said Section, the order would apply only where the convict did not abscond upon being granted bond.
3. In the instant case, there is no trial court record or record of proceedings filed to show that the applicant was not released on bail pending trial; or that he did not simply raise bail or that he never absconded.
4. We called for the lower court record which has not been availed to this court and therefore this court cannot make orders in a vacuum. It was upon the applicant to file with his application, all documents including proceedings of the lower court for perusal by this court.
5. For want of evidence that the applicant was not on bond or that he did not abscond, I find the application unsupported. I hereby dismiss it and mark this file as closed.
6. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 20TH DAY OF SEPTEMBER 2021
R.E. ABURILI
JUDGE