[2023] KEHC 25608 (KLR)
The High Court found that the applicant was arrested on 26th September 2019, remained in custody throughout the trial, and was not released on bond. The trial court, in sentencing the applicant to six years imprisonment for robbery with violence, failed to consider the period already spent in custody as required by...
Source-derived case information.
- Citation
- [2023] KEHC 25608 (KLR)
- Parties
- Applicant: Isaac Hassan Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E069 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Consideration of Time Spent in Custody Under Section 333(2) of the Criminal Procedure Code
- Outcome
- application allowed
- Judges
- RE Aburili
- Legal Topics
- Sentencing, Time Spent in Custody, Section 333 2 Criminal Procedure Code, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Hassan Ochieng
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Consideration of Time Spent in Custody Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the trial court failed to consider the period the applicant spent in custody prior to conviction as required under Section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant was in custody throughout the trial period and thus entitled to have that period considered in sentencing.
Ratio Decidendi
The High Court found that the applicant was arrested on 26th September 2019, remained in custody throughout the trial, and was not released on bond. The trial court, in sentencing the applicant to six years imprisonment for robbery with violence, failed to consider the period already spent in custody as required by Section 333(2) of the Criminal Procedure Code. The High Court held that this omission entitled the applicant to have his sentence computed from the date of arrest. Accordingly, the court ordered that the six-year sentence imposed on 26th August 2020 be calculated from 26th September 2019, the date of arrest, thereby giving effect to the statutory requirement and correcting the...
Court Disposition
application allowed
Orders
- The six (6) years imprisonment imposed on the convict Isaac Hassan Ochieng on 26th August 2020 shall be calculated from the date of his arrest on 26th September 2019.
- This file is closed.
Full Case Text
Judgment text and source record
24 paragraphs
Ochieng v Republic (Miscellaneous Criminal Application E069 of 2023) [2023] KEHC 25608 (KLR) (17 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25608 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E069 of 2023
RE Aburili, J
November 17, 2023
Between
Isaac Hassan Ochieng
Applicant
and
Republic
Respondent
(From the original conviction and sentence in Senior Principal Magistrate’s Court Criminal Case No. 810 of 2019 at Winam)
Ruling
1. The Applicant is a convict vide Winam Senior Principal Magistrate Criminal Case no 810 of 2019 where he was charged, convicted and sentenced to serve six (6) years imprisonment for the offence of robbery with violence contrary to Section 296(2) of the Penal Code.
2. He pleaded not guilty to the charge and he was tried and found guilty of the charge. There is no evidence that he has appealed. Vide his application dated 22nd June 2023, he seeks for orders of this court to consider Section 333(2) of the Criminal Procedure Code in that he was arrested on 26th September 2019 and that he was in custody for eleven (11) months before he was convicted yet the trial court did not take into account the period that he was in custody, as he was never released on bond pending trial.
3. The applicant had initially applied to this court vide Misc. Criminal Application no E076 of 2022 which was dismissed as he did not attach copies of proceedings for the court to peruse and consider if he was not on bond during trial.
4. I have considered the application dated 22nd June 2023 though filed on 6th November 2023 and the proceedings in Winam SPM Criminal Case no 810 of 2019. The charge sheet annexed shows that the applicant was arrested on 26th September 2019 and taken to court on 27th September 2019.
5. He took plea and was granted bond of ksh 600,000 with one surety of similar amount but there is no record of approval and or eventual release of the applicant on bond pending trial until he was convicted and sentenced on 28th August 2020.
6. For the above reasons, I agree that the applicant was in custody during the trial. In the sentencing remarks, I observe that the trial court did not take into account the period spent in custody by the convict hence this application.
7. In the premises, I allow the application dated 22nd June 2023 and order that the six (6) years imprisonment imposed on the Convict Isaac Hassan Ochieng on 26th August 2020 shall be calculated from date of his arrest on 26th September 2019.
8. I so order. This file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 17TH DAY OF NOVEMBER, 2023R. E. ABURILIJUDGE