[2022] KEHC 14243 (KLR)
The court found that the trial court had expressly considered both the period the applicant spent in remand custody and the mitigation factors before passing sentence. The sentence imposed was below the statutory minimum, indicating the trial court exercised discretion in favor of the applicant. Therefore, there was...
Source-derived case information.
- Citation
- [2022] KEHC 14243 (KLR)
- Parties
- Applicant: John Ezekiel Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E422 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Sentence Revision, Remand Custody Credit, Sexual Offences, Mitigation Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Ezekiel Ochieng
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial court failed to take into account the period the applicant spent in remand custody when passing sentence.
- 2 Whether the sentence imposed was legal and proper in light of the mitigation and statutory requirements.
Ratio Decidendi
The court found that the trial court had expressly considered both the period the applicant spent in remand custody and the mitigation factors before passing sentence. The sentence imposed was below the statutory minimum, indicating the trial court exercised discretion in favor of the applicant. Therefore, there was no basis for revision as the requirements of section 333(2) of the Criminal Procedure Code had been satisfied and the sentence was both legal and proper.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed in its entirety.
Full Case Text
Judgment text and source record
23 paragraphs
Ochieng v Republic (Criminal Revision E422 of 2021) [2022] KEHC 14243 (KLR) (Crim) (25 October 2022) (Ruling)
Neutral citation: [2022] KEHC 14243 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Revision E422 of 2021
DO Ogembo, J
October 25, 2022
Between
John Ezekiel Ochieng
Applicant
and
Republic
Respondent
Ruling
1. The applicant, John Ezekiel Ochieng, has approached this court by way of a Chamber Summons application filed on 30. 12. 2021. The application filed is far revision under section 362 of the Criminal Procedure Code and seeks that the sentence be revised to account for the period the applicant spent in remand custody awaiting determination of his trial pursuant to section 333(2) of the Criminal Procedure Code. in the affidavit in support of the application, the applicant has deponed that the said period amounted to 10 months.
2. The applicant has in addition filed mitigation submissions, basically expressing;i)That he is very remorsefulii)That he has undergone professional counseling.iii)That he has reformed.iv)That he has health complications.v)That he required dietary changes.
3. The prosecution side opposed this application on grounds that whereas the sentence ought to have been 10 years imprisonment, the applicant was sentenced to serve 8 years imprisonment. And that the court duly took note of the period taken in custody of 9 months. Counsel urged the court to dismiss this application.
4. I have considered the 2 rival submissions. The record of proceedings show that the applicant was convicted and sentenced on the alternative charge of committing an indecent act with a child contrary to section 11(1) of the sexual offences act, No. 3 of 2006. The sentence therein is a term of not less that 10 years’ imprisonment.
5. This application basically seeks revision of the sentence to reflect the period spent in custody and also on the factors of mitigation as seen above. I have considered the sentencing proceedings before the lower court. It is clear that the applicant raised a very long mitigations in which he raised the same issues he had raised in support of this application. And in passing the sentence, the court clearly stated that it took into account the mitigation of the applicant. The court further noted that it had taken into account the period that the applicant had taken in remand custody.
6What I get from the record of the proceedings is that the sentence meted out by the trial court was both legal and proper. And the court duly considered the period spent in remand custody by the applicant in passing the sentence. The court therefore clearly satisfied the requirements of section 333(2) of the Criminal Procedure Code.
7. This application of the applicant therefore lacks any merit. I dismiss the same wholly. Orders accordingly.
D. O. OGEMBOJUDGE25TH OCTOBER, 2022. Court:Ruling read out in court in presence of the applicant (Kamiti Medium) and Ms. Akunja for the state.D. O. OGEMBOJUDGE25TH OCTOBER, 2022.