[2019] KEHC 778 (KLR)
The court held that since the appellant withdrew his appeal against conviction, only the issue of sentence remained for determination. Applying Section 333(2) of the Criminal Procedure Code, the court found that the period the appellant spent in custody from the date of arrest (3rd February 2017) until sentencing...
Source-derived case information.
- Citation
- [2019] KEHC 778 (KLR)
- Parties
- Appellant: Maurice Ochieng Obadha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 97 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal against sentence allowed to the extent that the sentence shall be computed from the date of arrest; appeal against conviction marked as withdrawn.
- Judges
- RE Aburili
- Legal Topics
- Sexual Offences, Sentencing Principles, Appeal Withdrawal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maurice Ochieng Obadha
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant should be recalculated to account for time spent in custody prior to conviction.
- 2 Whether the appeal against conviction stands after the appellant's withdrawal.
Ratio Decidendi
The court held that since the appellant withdrew his appeal against conviction, only the issue of sentence remained for determination. Applying Section 333(2) of the Criminal Procedure Code, the court found that the period the appellant spent in custody from the date of arrest (3rd February 2017) until sentencing should be considered in the computation of his 10-year imprisonment term. The court therefore ordered that the sentence be calculated from the date of arrest, as the appellant was not released on bond during trial. The appeal against sentence was allowed only to the extent of recalculating the sentence commencement date.
Court Disposition
Appeal against sentence allowed to the extent that the sentence shall be computed from the date of arrest; appeal against conviction marked as withdrawn.
Orders
- The appeal against conviction is marked as withdrawn.
- The 10-year imprisonment sentence shall be calculated from 3rd February 2017, the date of arrest.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL APPEAL NO. 97 OF 2017
MAURICE OCHIENG OBADHA...........................APPELLANT
VERSUS
REPUBLIC............................................................ RESPONDENT
(Being an appeal against conviction and sentence in Siaya PMCCR [S.O.] No.6 of 2017 dated 4. 10. 2017 before Hon. J.O. Ongondo – Principal Magistrate)
JUDGMENT
1. The appeal herein filed on 6. 10. 2017 challenges the conviction and sentence of 10 years imprisonment imposed by Hon. J.O. Ong’ondo – P.M. delivered on 4. 10. 2017 in Siaya PM [S.O.] Case No. 6 of 2017.
2. The appellant Maurice Ochieng was convicted and sentenced for raping a 70 year old woman on the nights of 2nd and 3rd February, 2017 at Got Regea Sub-Location in Gem Sub-County within Siaya County. The appellant has now applied to have his appeal against conviction withdrawn. I hereby mark his appeal against conviction as withdrawn.
3. On sentence, the appellant was sentenced to a minimum sentence of 10 years imprisonment under Section 3(1) (a) (b) (3) of the Sexual Offences Act.
4. That Section also gives discretion to the court to enhance sentence to life imprisonment.
5. However, as the appellant has not pursued his appeal against conviction, I invoke Section 333(2) of the Criminal Procedure Codeand Order that the 10 year imprisonment shall be calculated form 3. 2.2017 when the appellant was first arrested since he was not on bond during the trial.
6. The appeal against sentence is accordingly allowed to that extent only.
7. Orders accordingly.
Dated, Signed and Delivered at Siaya this 20th Day of November, 2019.
R. E. ABURILI
JUDGE
In the presence of:
The appellant in person
Mr. Okachi SPPC
CA: Brenda and Modestar