[2023] KEHC 3257 (KLR)
The court found that while section 333(2) of the Criminal Procedure Code mandates consideration of time spent in custody before sentencing, the applicant failed to provide sufficient evidence or material from the criminal petition file to support his claim. The committal warrant indicated that the applicant was...
Source-derived case information.
- Citation
- [2023] KEHC 3257 (KLR)
- Parties
- Applicant: Dancun Ouma Ochien’G; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E023 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Computation Under Section 333(2) of the Criminal Procedure Code
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentencing Computation, Robbery With Violence, Section 333 2 Criminal Procedure Code, Custodial Remand Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dancun Ouma Ochien’G
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Computation Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the applicant is entitled to have his thirty-year sentence computed from the date of arrest under section 333(2) of the Criminal Procedure Code.
- 2 Whether sufficient evidence was provided to support the applicant's claim of pre-sentence custody.
Ratio Decidendi
The court found that while section 333(2) of the Criminal Procedure Code mandates consideration of time spent in custody before sentencing, the applicant failed to provide sufficient evidence or material from the criminal petition file to support his claim. The committal warrant indicated that the applicant was sentenced to death, later commuted to life imprisonment, and subsequently to thirty years, but the absence of relevant proceedings or rulings precluded the court from granting the relief sought. The court emphasized the need for applicants to attach all relevant materials to avoid abuse of the process and to enable proper computation of sentences. Consequently, the application was...
Court Disposition
application dismissed
Orders
- The application is dismissed.
- The convict may file a fresh application attaching relevant material for reconsideration.
Full Case Text
Judgment text and source record
26 paragraphs
Ochien’g v Republic (Miscellaneous Criminal Application E023 of 2022) [2023] KEHC 3257 (KLR) (12 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3257 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E023 of 2022
RE Aburili, J
April 12, 2023
Between
Dancun Ouma Ochien’G
Applicant
and
Republic
Respondent
Ruling
1. The applicant is a convictvide Nyando Senior Resident Magistrate’s Court criminal case No 1886 of 2005. He was convicted on November 15, 2007 for the offence of robbery with violence contrary to section 296 (2) of the Penal Code and sentenced to death.
2. He claims that the death sentence was later reduced to thirty (30) years imprisonment vide petition No 14 of 2019 at Kisumu on August 7, 2020.
3. He prays that the thirty (30) years term sentence be calculated from the date of his arrest on December 11, 2005 as he was in custody pending trial.
4. I have considered the application under section 333(2) of the Criminal Procedure Code. I am cognisant of and I take judicial notice of the fact that prior to 2010, capital offences such as murder, robbery with violence were not bailable hence once arrested, one had to remain in custody until the end of the trial.
5. There is no contrary evidence in this matter that the convict was in custody pending trial as per the committal warrant of November 15, 2007 where he was sentenced to death in count 1 of the many counts that the faced and he was also given term sentences of three (3) years imprisonment on each of the other 4 counts which sentences were to run consecutively meaning if his death sentence was reduced to thirty (30) years imprisonment, then that sentence being the highest, was to run concurrently with the 3 years imprisonment.
6. However, the said committal warrant shows that the death sentence was commuted to life imprisonment on August 3, 2009.
7. The convict has for over one year never bothered to file into court proceedings or ruling in the criminal petition file wherein he was handed/resentenced. The period allegedly spent in custody if long and one easily take advantage of gap if a blanket order is made.
8. I find this application not supported. It is hereby dismissed.
9. The convict can file a fresh application attaching relevant material for reconsideration.
10. Order to be extracted.
11. This file is closed.
Dated, Signed and Delivered at Kisumu this 12th Day of April, 2023R. E. ABURILIJUDGE