[2024] KEHC 13390 (KLR)
The court held that since the applicant's appeal against conviction and sentence is still pending, any grievance regarding the computation of sentence, including consideration of pre-sentence custody, should be addressed within that appeal. Filing a separate miscellaneous application while the appeal is pending is...
Source-derived case information.
- Citation
- [2024] KEHC 13390 (KLR)
- Parties
- Applicant: Feldon Ouma Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 87 of 2023
- 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, Sexual Offences, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Feldon Ouma 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 spent in custody prior to sentencing should be considered in the applicant's sentence.
- 2 Whether the application is properly before the court given the existence of a pending appeal.
- 3 Whether filing separate proceedings constitutes an abuse of court process.
Ratio Decidendi
The court held that since the applicant's appeal against conviction and sentence is still pending, any grievance regarding the computation of sentence, including consideration of pre-sentence custody, should be addressed within that appeal. Filing a separate miscellaneous application while the appeal is pending is improper and amounts to an abuse of court process. Consequently, the application was found to be without merit and dismissed.
Court Disposition
application dismissed
Orders
- The application dated 21/6/2023 is dismissed for lack of merit.
- This file is closed.
Full Case Text
Judgment text and source record
19 paragraphs
Ochieng v Republic (Miscellaneous Criminal Application 87 of 2023) [2024] KEHC 13390 (KLR) (22 October 2024) (Ruling)
Neutral citation: [2024] KEHC 13390 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application 87 of 2023
RE Aburili, J
October 22, 2024
Between
Feldon Ouma Ochieng
Applicant
and
Republic
Respondent
Ruling
1. The applicant Feldon Ouma Ochieng is a convict in Ukwala PM SO 32/2019 where he was sentenced to serve 10 years imprisonment for gang defilement contrary to Section 10 of the Sexual Offences Act on 2/9/2020. The victim was aged 15 years old.
2. He appealed vide Siaya HCCRA 87/2023. He does not tell this court what happened to that appeal. He prays that this court considers the period he spent in custody from 8/12/2020 to 4/4/2020 when he was sentenced.
3. I have considered the application and perused the proceedings from Ukwala PM’s Court in SO Case No. 32/2019. The charge sheet dated 10/12/2019 shows that the convict was arrested on 8/12/2019 and he was sentenced on 2/9/2020. He was granted bond but there is no evidence that he availed surety and or that he was released.
4. Nevertheless, as the applicant’s appeal is still pending in this court, that avenue is the right forum for the convict to air his grievance for consideration and not to file different separate proceedings which I find to be an abuse of court process. The application dated 21/6/2023 is accordingly found to be devoid of merit and is hereby dismissed. This file is closed. I so order.
RULING DATED, SIGNED AND DELIVERED THIS 22NDDAY OF OCTOBER, 2024R. E. ABURILIJUDGE