[2024] KEHC 7291 (KLR)
The court found that the applicant's sentence, as revised by the appellate court to 75 years imprisonment, did not specify when the sentence was to commence. Applying section 333(2) of the Criminal Procedure Code, the court held that the sentence must take into account the period the applicant spent in remand...
Source-derived case information.
- Citation
- [2024] KEHC 7291 (KLR)
- Parties
- Applicant: Kennedy Otieno Odhiambo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 138 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Sentence Review Ruling
- Outcome
- application allowed; sentence revised
- Judges
- DO Ogembo
- Legal Topics
- Sentence Revision, Remand Custody Credit, Sexual Offences, Mandatory Sentencing, Resentencing, Appeal Outcome
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kennedy Otieno Odhiambo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Sentence Review Ruling
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in remand custody considered in his sentence under section 333(2) of the Criminal Procedure Code.
- 2 Whether the appellate court's resentencing order should be revised to specify the commencement date of the sentence.
Ratio Decidendi
The court found that the applicant's sentence, as revised by the appellate court to 75 years imprisonment, did not specify when the sentence was to commence. Applying section 333(2) of the Criminal Procedure Code, the court held that the sentence must take into account the period the applicant spent in remand custody. Accordingly, the court ordered that the 75-year sentence should run from 27 June 2016, the date the applicant was first arraigned in court. This ensures compliance with statutory requirements and aligns with the principle that time spent in custody prior to sentencing must be credited towards the total sentence imposed.
Court Disposition
application allowed; sentence revised
Orders
- The applicant shall serve 75 years imprisonment as ordered by the appellate court.
- The sentence shall run from 27/6/2016, the date the applicant was first arraigned in court, in compliance with section 333(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
21 paragraphs
Odhiambo v Republic (Miscellaneous Criminal Application 138 of 2023) [2024] KEHC 7291 (KLR) (13 June 2024) (Ruling)
Neutral citation: [2024] KEHC 7291 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application 138 of 2023
DO Ogembo, J
June 13, 2024
Between
Kennedy Otieno Odhiambo
Applicant
and
Republic
Respondent
(Being an Application for Sentence Review from Sentence in the PM’s at Bondo in Criminal Case No. 739 of 2016 dated 3/6/2017 and delivered by Hon. M. Obiero – PM)
Ruling
1. The Applicant, Kennedy Otieno Odhiambo, vide application filed herein on 14/8/2023, pleads for revision of his sentence to account for the period he spent in custody awaiting determination of his case. The prosecution has not made any substantive response to the application of the applicant.
2. Section 333 (2) of the Criminal Procedure Code dictates that the period spent in remand custody be accounted for in the sentence of the accused person.
3. I have perused the record of proceedings herein. In sentencing the applicant, the trial magistrate noted;“I have considered the mitigation by the accused person. The accused is a first offender. However, the sentence prescribed under section 8 (2) of the Sexual Offences Act is a mandatory life imprisonment. I have no alternative but to sentence him accordingly. I do sentence the accused to serve life imprisonment. Right of Appeal explained.”
4. The applicant then filed an appeal at the High Court, being Criminal Appeal No. 59/2017. In the judgment of the court read out on 18/12/2019, the court noted as follows in sentencing the applicant;“On sentence, the appellant was given mandatory sentence having regard to the age of the complainant as stipulated in section 8 (2) of the Sexual Offences Act. He was a first offender and had children as per his mitigation. However as life sentence being minimum is no longer mandatory following the jurisprudence set by the Court of Appeal in Criminal Appeal No. 93 of 2014, Jared Injiri Koita v R, [2019] eKLR, applying the principles espoused in Francis Karioko Muruatetu &others v R, SC. Petition No. 15/16 of 2015, on the unconstitutionality of mandatory death sentence, I would exercise discretion and resentence the appellant sex pest who took advantage of the innocent child and defiled her, to serve 75 years in prison.”
5. The court did not give indication of when the sentence of the applicant would run. I therefore find merit in this application and revise the sentence. The appellant shall serve 75 years imprisonment as ordered by the appellate court. Same shall run from 27/6/2016, the date applicant was first arraigned in court in compliance with section 333 (2) of the Criminal Procedure Code.Orders accordingly.
DATED, SIGNED AND DELIVERED THIS 13TH DAY OF JUNE, 2024. D. O. OGEMBOJUDGE13/6/2024