[2023] KEHC 3150 (KLR)
The court held that it lacked jurisdiction to further reduce the applicant's sentence, as the sentence had already been reviewed and reduced by the High Court on appeal. Furthermore, the applicant failed to provide sufficient evidence regarding the period spent in custody, such as dates of arrest or bond status, to...
Source-derived case information.
- Citation
- [2023] KEHC 3150 (KLR)
- Parties
- Applicant: Joseph Agutu Obala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E121 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review and Consideration of Time Spent in Custody
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Defilement Offence, Sentencing Principles, Application of Section 333 2 Cpc, Constitutional Rights in Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Agutu Obala
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review and Consideration of Time Spent in Custody
Legal Issues
- 1 Whether the High Court has jurisdiction to further reduce the applicant's sentence after it was already reduced on appeal.
- 2 Whether Section 333(2) of the Criminal Procedure Code should be invoked to consider time spent in custody in the applicant's sentence.
- 3 Whether the applicant provided sufficient evidence to support invocation of Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court held that it lacked jurisdiction to further reduce the applicant's sentence, as the sentence had already been reviewed and reduced by the High Court on appeal. Furthermore, the applicant failed to provide sufficient evidence regarding the period spent in custody, such as dates of arrest or bond status, to enable the court to invoke Section 333(2) of the Criminal Procedure Code. In the absence of such evidence and relevant court proceedings, and considering the seriousness of the offence, the court declined to grant the orders sought and dismissed the application.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- File closed.
Full Case Text
Judgment text and source record
25 paragraphs
Obala v Republic (Miscellaneous Criminal Application E121 of 2022) [2023] KEHC 3150 (KLR) (12 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3150 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E121 of 2022
RE Aburili, J
April 12, 2023
Between
Joseph Agutu Obala
Applicant
and
Republic
Respondent
Ruling
1. The Applicant is Joseph Agutu Obala. He was convicted and sentenced to serve 75 years’ imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act vide Kisumu Chief Magistrate’s Court Criminal Case No 18 of 2016.
2. He appealed vide Kisumu HCCRA No 116 of 2018 which was determined with the High Court dismissing the appeal against conviction but reducing his sentence to twenty (20) years’ imprisonment.
3. He states that he has not filed any further appeal to the Court of Appeal.
4. He now claims that this court should award him lenient and definite sentence as per Article 50(2) (p) (q) of the Constitutionand invoke Section 333(2) of the Criminal Procedure Code to consider the period spent in custody.
5. I have considered the application as presented. As conceded, the Convict’s sentence was reduced to twenty (20) years imprisonment from seventy five (75) years imprisonment, on appeal.
6. This court has no power to reduce that sentence further.
7. On invocation of Section 333(2) of the Criminal Procedure Code, the Applicant has not disclosed when he was arrested and whether he was released on bond and if so, when.
8. In the absence of court proceedings which he used on appeal, this court is unable in the circumstances of this case, to invoke the provisions of Section 333(2) of the Criminal Procedure Code in his favour, in such a serious offence where the High Court reduced his sentence and there is a possibility that the time spent in custody if any may have been taken into consideration.
9. I find the application not supported. It is hereby dismissed.
10. File closed.
Dated, Signed and Delivered at Kisumu this 12th Day of April, 2023R. E. ABURILIJUDGE