[2023] KEHC 3158 (KLR)
The court found that the trial court failed to consider the period the applicant spent in custody prior to sentencing, as required by Section 333(2) of the Criminal Procedure Code. The applicant was arrested on August 14, 2013, arraigned on September 4, 2013, and denied bail on November 26, 2014. The sentence of...
Source-derived case information.
- Citation
- [2023] KEHC 3158 (KLR)
- Parties
- Applicant: Kevin Ochieng Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E094 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Sentence Recalculation Application
- Outcome
- application allowed
- Judges
- RE Aburili
- Legal Topics
- Sentencing Principles, Custodial Period Credit, Manslaughter, Penal Code Section 333 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kevin Ochieng Ochieng
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Sentence Recalculation Application
Legal Issues
- 1 Whether the period spent in custody prior to sentencing should be considered in computing the applicant's sentence as per Section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant is entitled to have his sentence recalculated from the date of arrest.
Ratio Decidendi
The court found that the trial court failed to consider the period the applicant spent in custody prior to sentencing, as required by Section 333(2) of the Criminal Procedure Code. The applicant was arrested on August 14, 2013, arraigned on September 4, 2013, and denied bail on November 26, 2014. The sentence of fifteen years' imprisonment was imposed on May 24, 2017, without accounting for the pre-sentence custodial period. The High Court held that the sentence should be recalculated to run from the date of arrest, August 14, 2013, thereby giving effect to the statutory requirement and ensuring the applicant receives credit for time already served.
Court Disposition
application allowed
Orders
- The fifteen (15) years imprisonment imposed on the applicant shall be calculated from August 14, 2013, the date of arrest.
- Signal to issue.
Full Case Text
Judgment text and source record
23 paragraphs
Ochieng v Republic (Miscellaneous Criminal Application E094 of 2021) [2023] KEHC 3158 (KLR) (12 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3158 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E094 of 2021
RE Aburili, J
April 12, 2023
Between
Kevin Ochieng Ochieng
Applicant
and
Republic
Respondent
Ruling
1. The Applicant is Kevin Ochieng Ochieng. He was convicted and sentenced to serve fifteen (15) years imprisonment for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code vide Kisumu HCR No. 37 of 2013.
2. He seeks for lenient sentence as Section 333(2) of the Criminal Procedure Code on the period he spent in prison custody was not considered in sentencing him.
3. I have considered the application herein and perused original Kisumu HCR No 37 of 2013. The Applicant was convicted on May 24, 2017 for the offence of Manslaughter contrary to Section 202 of the Penal Codefollowing a trial for the offence of murder. He was sentenced to serve fifteen (15) years imprisonment.
4. There is no mention of the period spent in custody to be taken into account. However, court proceedings show that on November 26, 2014, the applicant was denied bail pending trial in view of the negative prebail assessment report.
5. The Applicant was arraigned on September 4, 2013 when he took plea. There is no clear date of arrest but from the evidence tendered by the applicant in his defence on May 12, 2017, he was arrested on August 14, 2013.
6. For the above reasons, I find the application merited. I allow it and order that the fifteen (15) years imprisonment imposed on the Applicant/Convict shall be calculated from August 14, 2013 day of arrest.
7. Signal to issue.
8. This file is closed.
Dated, Signed and Delivered at Kisumu this 12 th Day of April, 2023R. E. ABURILIJUDGE