[2022] KEHC 13160 (KLR)
The High Court found that it had already considered the period the applicant spent in custody during the trial when determining his appeal in HCRA 06/2020. The judgment in that appeal explicitly stated that the 15-year sentence for defilement was to be calculated from the date of arrest, January 12, 2019, thereby...
Source-derived case information.
- Citation
- [2022] KEHC 13160 (KLR)
- Parties
- Applicant: Benard Aganda Muyungi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application E117 of 2022
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Consideration of Time Served in Sentence Calculation
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentencing, Time Served Credit, Defilement Offence, Sexual Offences Act, Criminal Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Aganda Muyungi
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Consideration of Time Served in Sentence Calculation
Legal Issues
- 1 Whether the period served in custody during trial should be considered in the applicant's sentence as per section 333(2) of the Criminal Procedure Code.
- 2 Whether the application is res judicata or an abuse of court process.
Ratio Decidendi
The High Court found that it had already considered the period the applicant spent in custody during the trial when determining his appeal in HCRA 06/2020. The judgment in that appeal explicitly stated that the 15-year sentence for defilement was to be calculated from the date of arrest, January 12, 2019, thereby giving effect to section 333(2) of the Criminal Procedure Code. As the issue had already been addressed and determined, the present application was deemed an abuse of court process and without merit. The court dismissed the application and ordered the file closed.
Court Disposition
application dismissed
Orders
- The application is dismissed as an abuse of court process and devoid of merit.
- File closed.
Full Case Text
Judgment text and source record
20 paragraphs
Muyungi v Republic (Criminal Miscellaneous Application E117 of 2022) [2022] KEHC 13160 (KLR) (23 September 2022) (Ruling)
Neutral citation: [2022] KEHC 13160 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Miscellaneous Application E117 of 2022
RE Aburili, J
September 23, 2022
Between
Benard Aganda Muyungi
Applicant
and
Republic
Respondent
(Being an Application arising from Judgment, conviction and sentence at Principal Magistrate’s in Siaya in Sexual Offence Case No. 6 of 2019 on 22/1/2020 by Hon. M. Mwangi, Resident Magistrate and Siaya HCCRA No. 6 of 2020 on 30th November 2020)
Ruling
1. The applicant convict herein seeks from this court orders for the court to consider the period served in custody during trial, in the sentence imposed on him by the trial court.
2. I have perused the trial court and this court’s records. The judgment of this court delivered in HCRA 06/2020 wherein the applicant herein challenged his conviction and sentence in Siaya SPM SO 6/2019 for the offence of defilement contrary to Section 8(1) (3) of the Sexual Offences Act, is clear that the discretionary sentence of 15 years imprisonment was to be calculated from January 12, 2019 the date when he was arrested.
3. It follows that this court already considered section 333(2) of the Criminal Procedure Code in the appeal by the applicant herein. I find this application an abuse of court process and devoid of any merit. It is hereby dismissed.
4. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 23RD DAY OF SEPTEMBER, 2022R.E. ABURILIJUDGE