[2023] KEHC 3427 (KLR)
The court held that the applicant's request was merited, as section 333(2) of the Criminal Procedure Code mandates that any period spent in custody prior to the date of sentencing must be taken into account when computing the term of imprisonment. The applicant had spent seven months and four days in custody before...
Source-derived case information.
- Citation
- [2023] KEHC 3427 (KLR)
- Parties
- Applicant: Enos Kalo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E062 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Consideration of Pre Sentence Custody Period
- Outcome
- Application allowed.
- Judges
- RE Aburili
- Legal Topics
- Sentencing, Pre Sentence Custody, Robbery With Violence, Rape, Resentencing, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Enos Kalo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Consideration of Pre Sentence Custody Period
Legal Issues
- 1 Whether the period spent in custody prior to sentencing should be considered in computing the applicant's sentence.
- 2 Whether section 333(2) of the Criminal Procedure Code applies to the applicant's resentencing.
Ratio Decidendi
The court held that the applicant's request was merited, as section 333(2) of the Criminal Procedure Code mandates that any period spent in custody prior to the date of sentencing must be taken into account when computing the term of imprisonment. The applicant had spent seven months and four days in custody before being sentenced. The court therefore ordered that the thirty-year imprisonment term imposed upon resentencing should be calculated from the date of arrest, with the pre-sentence custody period deducted. This ensures compliance with statutory requirements and fair administration of justice.
Court Disposition
Application allowed.
Orders
- The thirty (30) years imprisonment that the applicant was resentenced to shall be calculated taking into account the period he spent in custody from November 3, 2003 to June 7, 2004.
- Order to be extracted.
Full Case Text
Judgment text and source record
22 paragraphs
Kalo v Republic (Miscellaneous Criminal Application E062 of 2022) [2023] KEHC 3427 (KLR) (13 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3427 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E062 of 2022
RE Aburili, J
April 13, 2023
Between
Enos Kalo
Applicant
and
Republic
Respondent
Ruling
1. The applicant herein Enos Kalo is a Convict in Maseno Senior Principal Magistrate’s Court Criminal Case No. 825 of 2003. He was charged, tried and convicted of the two (2) counts of the offences of Robbery with violence and Rape and sentenced to serve ten (10) years imprisonment for rape and death penalty for Robbery with violence on June 7, 2004 as per the warrant of commitment annexed to the application filed on May 12, 2022.
2. The Convict appealed vide Kisumu HCRA No 96 of 2004 and lost. His appeal to the Court of Appeal vide Court of Appeal Criminal Appeal No. 99 of 2007 was also dismissed.
3. However, his death sentence was commuted to life imprisonment and vide Constitutional Petition No. 71 of 2018 at Kisumu High Court, he was resentenced to serve thirty (30) years imprisonment.
4. He now prays that the seven (7) months and four (4) days he spent in custody pending sentences from November 3, 2003 to June 7, 2004 be considered.
5. I have considered the application. I find it merited. I invoke section 333(2) of the Criminal Procedure Code and order that the thirty (30) years imprisonment that the Applicant was resentenced shall be calculated taking into account the period he spent in custody from November 3, 2003 to June 7, 2004.
6. Order to be extracted.
7. This file is now closed.
Dated, Signed and Delivered at Kisumu this 13th Day of April, 2023R. E. ABURILIJUDGE