[2023] KEHC 3090 (KLR)
Section 333(2) of the Criminal Procedure Code does not apply to life sentences because such sentences are not for a definite term. Therefore, the period spent in custody prior to sentencing is immaterial and cannot be credited against a life sentence. The High Court lacks jurisdiction to substitute or vary a...
Source-derived case information.
- Citation
- [2023] KEHC 3090 (KLR)
- Parties
- Applicant: Justus Okore Odwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E095 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Consideration of Time Spent in Custody Under Section 333(2) of the Criminal Procedure Code
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentencing, Defilement Offence, Custodial Period Credit, Sexual Offences Act, Life Imprisonment, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justus Okore Odwa
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Consideration of Time Spent in Custody Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether section 333(2) of the Criminal Procedure Code applies to a life sentence for purposes of crediting time spent in custody.
- 2 Whether the High Court can substitute or vary a lawfully imposed life sentence based on an application under section 333(2) or article 165(3)(b) of the Constitution.
Ratio Decidendi
Section 333(2) of the Criminal Procedure Code does not apply to life sentences because such sentences are not for a definite term. Therefore, the period spent in custody prior to sentencing is immaterial and cannot be credited against a life sentence. The High Court lacks jurisdiction to substitute or vary a lawfully imposed life sentence on the basis of an application under section 333(2) or article 165(3)(b) of the Constitution. The application is without merit and must be dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- File closed.
Full Case Text
Judgment text and source record
18 paragraphs
Odwa v Republic (Miscellaneous Criminal Application E095 of 2022) [2023] KEHC 3090 (KLR) (28 March 2023) (Ruling)
Neutral citation: [2023] KEHC 3090 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E095 of 2022
RE Aburili, J
March 28, 2023
Between
Justus Okore Odwa
Applicant
and
Republic
Respondent
Ruling
1. The applicant Justus Okore Odwa was convicted and sentenced to serve life imprisonment for the offence of defilement contrary to section 8(1) (2) of the Sexual Offences Act as per his application herein and he claims that his appeal to the High Court from the Chief Magistrate’s Court Kisumu in sexual offences case No 74 of 2008 was dismissed vide HCCRA No 54 of 2009.
2. He now wants this court to apply section 333(2) of the Criminal Procedure Code on the period spent in custody.
3. Regrettably, as the life sentence is not a term sentence, the period spent in custody during the trial is immaterial. This application is found to be devoid of merit and is hereby dismissed as this court cannot substitute sentence lawfully imposed on the basis of an application under section 333(2) or article 165(3) (b) of the Constitution. The application is dismissed. File closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 28TH DAY OF MARCH, 2023R. E. ABURILIJUDGE