[2022] KEHC 10304 (KLR)
The court held that while the applicant may have a meritorious case for re-sentencing based on the period spent in custody under section 333(2) of the Criminal Procedure Code, it cannot exercise its discretion or make a determination until it has had sight of the relevant trial and appeal records. The court...
Source-derived case information.
- Citation
- [2022] KEHC 10304 (KLR)
- Parties
- Applicant: David Othieno Odhiambo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E092 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Re Sentencing; Directions Issued Pending Receipt of Trial and Appeal Records
- Outcome
- Directions issued; no final determination on re-sentencing pending receipt of records.
- Judges
- WM Musyoka
- Legal Topics
- Re Sentencing, Time Spent in Custody, Section 333 2 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Othieno Odhiambo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Re Sentencing; Directions Issued Pending Receipt of Trial and Appeal Records
Legal Issues
- 1 Whether the applicant is entitled to re-sentencing based on the period spent in custody under section 333(2) of the Criminal Procedure Code.
- 2 Whether the court can exercise discretion to re-sentence without access to the trial and appeal records.
Ratio Decidendi
The court held that while the applicant may have a meritorious case for re-sentencing based on the period spent in custody under section 333(2) of the Criminal Procedure Code, it cannot exercise its discretion or make a determination until it has had sight of the relevant trial and appeal records. The court therefore directed the Deputy Registrar to call for the trial records in Kakamega HCCRC No. 9 of 2008 and set the matter for mention, emphasizing the necessity of a complete record before considering the merits of the application.
Court Disposition
Directions issued; no final determination on re-sentencing pending receipt of records.
Orders
- Deputy Registrar to call for the trial records in Kakamega HCCRC No. 9 of 2008.
- Matter to be mentioned on July 28, 2022.
Full Case Text
Judgment text and source record
19 paragraphs
Odhiambo v Republic (Miscellaneous Application E092 of 2021) [2022] KEHC 10304 (KLR) (24 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10304 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Application E092 of 2021
WM Musyoka, J
June 24, 2022
Between
David Othieno Odhiambo
Applicant
and
Republic
Respondent
Ruling
1. The Motion herein, undated, but filed on December 9, 2021, principally seeks re-sentencing, not on the basis of Francis Karioko Muruatetu & another v Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), but through consideration of the period spent in custody, by virtue of section 333(2) of the Criminal Procedure Code, cap 75, Laws of Kenya.
2. It would appear that the applicant could have a case which merits consideration, but I will not be able to exercise discretion under section 333(2) of the Criminal Procedure Code, unless I have sight of the trial records, and any appeal records from the Court of Appeal.
3. I hereby direct the Deputy Registrar to call for the trial records in Kakamega HCCRC No. 9 of 2008.
4. The matter shall be mentioned on July 28, 2022. A production order shall issue. Copies of this ruling to be made available to the applicant and the Office of the Director of Public Prosecutions.
DELIVERED, DATED AND SIGNED AT KAKAMEGA ON THIS 24th DAY OF June 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.David Othieno Odhiambo, the applicant, in person.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.