[2022] KEHC 15088 (KLR)
The court held that Section 333(2) of the Criminal Procedure Code does not apply to convicts serving life imprisonment following commutation from a death sentence. The applicant is not serving a term sentence but a life sentence imposed by the Court of Appeal, and therefore, the period spent in custody prior to...
Source-derived case information.
- Citation
- [2022] KEHC 15088 (KLR)
- Parties
- Applicant: Henry Collins Odhiambo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E040 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Resentencing
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Resentencing, Life Imprisonment, Death Sentence Commutation, Time Spent in Custody, Criminal Procedure Code Section 333 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Collins Odhiambo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Resentencing
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in custody during trial considered in his sentence under Section 333(2) of the Criminal Procedure Code.
- 2 Whether Section 333(2) of the Criminal Procedure Code applies to a convict serving a life sentence after commutation from a death sentence.
Ratio Decidendi
The court held that Section 333(2) of the Criminal Procedure Code does not apply to convicts serving life imprisonment following commutation from a death sentence. The applicant is not serving a term sentence but a life sentence imposed by the Court of Appeal, and therefore, the period spent in custody prior to sentencing cannot be considered for reduction of sentence under the cited provision. The application was found to be without merit and was dismissed accordingly.
Court Disposition
application dismissed
Orders
- The application for resentencing is declined and dismissed.
- File closed.
Full Case Text
Judgment text and source record
21 paragraphs
Odhiambo v Republic (Miscellaneous Criminal Application E040 of 2021) [2022] KEHC 15088 (KLR) (8 November 2022) (Ruling)
Neutral citation: [2022] KEHC 15088 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E040 of 2021
RE Aburili, J
November 8, 2022
Between
Henry Collins Odhiambo
Applicant
and
Republic
Respondent
(Application for resentencing in Kisumu HC Cr. 3 of 2003)
Ruling
1. This matter was filed in court on 12/4/2021.
2. The applicant is a convict in Kisumu HC Cr. Case No. 3 of 2003 wherein he was charged with the offence of Murder contrary to Section 204 of the Penal Code vide Information dated November 13, 2002. He was convicted by Hon B.K Tanui J on 2/3/2006 and sentenced to death. From the letter dated November 11, 2019 signed by the Officer Incharge Kisumu Maximum Prison, the applicant convict’s death sentence was commuted to life imprisonment in 2009. It follows that the death sentence imposed is no longer in force.
3. The applicant however claims in his application filed on 12/4/2021 that he was sentenced to serve 25 years imprisonment and that he wants this court to consider the time he spent in custody during the trial. He did submit on 28/9/2021 that he only wanted the period he spent in custody during his trial to be taken into account.
4. However, from the proceedings, the said section which is Section 333 (2) of the Criminal Procedure Code is inapplicable because the applicant is serving life imprisonment which is a lesser sentence and not the death sentence imposed on him by the High Court.
5. For the reasons that the applicant is serving a life sentence imposed by the Court of Appeal and not a term sentence, contrary to his assertions, I find this application incapable of being granted. I decline it and dismiss it. File closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 8TH DAY OF NOVEMBER, 2022. R.E. ABURILIJUDGE