[2023] KEHC 3155 (KLR)
The application was dismissed because it was not supported by any proceedings from the trial court to verify the applicant's claim of being in custody during the period in question. The court emphasized that, especially in serious cases, it is necessary to provide the trial court record to substantiate such claims....
Source-derived case information.
- Citation
- [2023] KEHC 3155 (KLR)
- Parties
- Applicant: Isaac Hassan Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E076 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Consideration of Pre Sentence Custody Period
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentencing, Pre Sentence Custody, Robbery With Violence, Penal Code Section 296 2
- 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 Pre Sentence Custody Period
Legal Issues
- 1 Whether the period of eleven months spent in custody by the applicant prior to conviction should be considered as part of the sentence served.
- 2 Whether the application is sufficiently supported by evidence from the trial court proceedings.
Ratio Decidendi
The application was dismissed because it was not supported by any proceedings from the trial court to verify the applicant's claim of being in custody during the period in question. The court emphasized that, especially in serious cases, it is necessary to provide the trial court record to substantiate such claims. Without such evidence, the court cannot exercise its discretion to consider the pre-sentence custody period as part of the sentence served.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- The convict may file a fresh application accompanied by full proceedings from the trial court.
Full Case Text
Judgment text and source record
23 paragraphs
Ochieng v Republic (Miscellaneous Criminal Application E076 of 2022) [2023] KEHC 3155 (KLR) (12 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3155 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E076 of 2022
RE Aburili, J
April 12, 2023
Between
Isaac Hassan Ochieng
Applicant
and
Republic
Respondent
Ruling
1. The applicant/convict is Isaac Hassan Ochieng and by his application dated July 7, 2022 filed in court on the same day, he seeks for orders that the eleven (11) months that he spent in custody from September 26, 2019 to August 25, 2020 be considered as part of the sentence served in criminal case number 810 of 2019 at Winam Senior Principal Magistrate’s Court.
2. The application is supported by his affidavit sworn on July 7, 2020 wherein he deposes that on August 25, 2020 he was convicted and sentenced to serve six (6) years for the offence of robbery with violence contrary to section 296(2) of the Penal Code and that during the trial, he was in custody.
3. I have considered the application which is not supported by any proceedings from the trial court.
4. I observe that most convicts have been lying to this court through these kind of applications even where the court record shows that they were on bond during trial. In other instances, they were resentenced but they lie to court to exercise discretion twice. To avert such situations, and in serious cases as this one, it is proper that the court is furnished with court proceedings to verify the allegation that convicts were in custody pending trial especially where the period they allege was spent in custody is long as is the case here.
5. In the premises, I find this application not supported. It is hereby dismissed.
6. The convict can file a fresh application accompanied by full proceedings from the trial court.
7. Prisons to be notified by signal.
8. I so order. File closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 12TH DAY OF APRIL, 2023R. E. ABURILIJUDGE