[2023] KEHC 19006 (KLR)
The court held that it is the duty of a convict seeking sentence reduction under Section 333(2) of the Criminal Procedure Code to provide evidence, such as trial court proceedings, demonstrating that they were in custody during the trial. In the absence of such evidence, the court cannot grant the benefit of...
Source-derived case information.
- Citation
- [2023] KEHC 19006 (KLR)
- Parties
- Applicant: Evans Kanya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E031 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Reduction Under Section 333(2) of the Criminal Procedure Code
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentence Reduction, Section 333 2 Criminal Procedure Code, Pre Sentence Custody, Burden of Proof, Defilement Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Kanya
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Reduction Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the applicant is entitled to a reduction of sentence under Section 333(2) of the Criminal Procedure Code.
- 2 Whether sufficient evidence was provided to prove the applicant was in custody during trial.
Ratio Decidendi
The court held that it is the duty of a convict seeking sentence reduction under Section 333(2) of the Criminal Procedure Code to provide evidence, such as trial court proceedings, demonstrating that they were in custody during the trial. In the absence of such evidence, the court cannot grant the benefit of sentence reduction. In this case, the applicant failed to provide any material to support his claim of pre-sentence custody, and therefore, the application for sentence reduction was dismissed.
Court Disposition
application dismissed
Orders
- The application is hereby dismissed.
- The convict can file a fresh application attaching documents.
Full Case Text
Judgment text and source record
21 paragraphs
Kanya v Republic (Miscellaneous Criminal Application E031 of 2023) [2023] KEHC 19006 (KLR) (19 June 2023) (Ruling)
Neutral citation: [2023] KEHC 19006 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E031 of 2023
RE Aburili, J
June 19, 2023
Between
Evans Kanya
Applicant
and
Republic
Respondent
Ruling
1. This court has rendered itself not once and not twice but severally that a convict who wishes this court to consider reduction of sentence imposed by the lower court, on account of Section 333(2) of the Criminal Procedure Code must and it is their duty, to place before this court, proceedings conducted in the trial court for consideration on whether the convict was on bond during trial and if not, the date of his arrest.
2. I have before me such an application similar to Misc. Criminal Application No. 111 of 2022 but no material to demonstrate that in the defilement case at Winam in SPM Sexual Offences No 13 of 2020, the convict herein Evans Kanya was held in custody throughout the trial and that therefore I should invoke Section 333(2) of the Criminal procedure Code to his benefit.
3. The applicant claims that he was in prison custody for two (2) years prior to his sentencing for ten (10) years on June 23, 2022. However, there is no evidence placed before me to support the allegation.
4. For the above reasons, I find no material upon which I can made orders favourable to the applicant convict. The application is hereby dismissed.
5. The convict can file a fresh application attaching documents.
6. This file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 19TH DAY OF JUNE, 2023R. E. ABURILIJUDGE