[2023] KEHC 3087 (KLR)
The application was dismissed because the applicant failed to provide the necessary material, specifically the lower court proceedings, to enable the High Court to ascertain whether he was in custody or on bond pending trial. The court emphasized that it cannot make a determination on the period spent in custody...
Source-derived case information.
- Citation
- [2023] KEHC 3087 (KLR)
- Parties
- Applicant: Martin Onyango Omondi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E034 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Consideration of Time Spent in Custody
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Robbery With Violence, Sentencing, 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
Martin Onyango Omondi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Consideration of Time Spent in Custody
Legal Issues
- 1 Whether the period spent in custody by the applicant prior to sentencing should be considered under section 333(2) of the Criminal Procedure Code.
- 2 Whether the application is supported by sufficient material to enable the court to make a determination.
Ratio Decidendi
The application was dismissed because the applicant failed to provide the necessary material, specifically the lower court proceedings, to enable the High Court to ascertain whether he was in custody or on bond pending trial. The court emphasized that it cannot make a determination on the period spent in custody without such evidence. The judge further noted that the applicant had already received a lenient sentence compared to the mandatory death penalty prescribed for robbery with violence, and thus, the application lacked merit in the absence of supporting documentation.
Court Disposition
application dismissed
Orders
- The application filed on March 18, 2022 is dismissed.
- The applicant may file a fresh application with annexed lower court proceedings for consideration.
Full Case Text
Judgment text and source record
22 paragraphs
Omondi v Republic (Miscellaneous Criminal Application E034 of 2022) [2023] KEHC 3087 (KLR) (28 March 2023) (Ruling)
Neutral citation: [2023] KEHC 3087 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E034 of 2022
RE Aburili, J
March 28, 2023
Between
Martin Onyango Omondi
Applicant
and
Republic
Respondent
Ruling
1. The Convict Martin Onyango Omondi was convicted and sentenced to serve ten (10) years imprisonment vide Winam Senior Principal Magistrate’s Court Criminal Case No. 54 of 2020 on February 10, 2022 for the offence of robbery with violence contrary to section 296(2) of the Penal Code.
2. He prays that the court takes into account section 333(2) of the Criminal Procedure Code on the period spent in custody.
3. It was the duty of the Convict to apply for the lower court proceedings and file them herein for the court to peruse and satisfy itself as to whether he was in custody or on bond pending trial.
4. I find the application herein filed on March 18, 2022 devoid of material in support thereof. It is hereby dismissed.
5. The applicant can file a fresh application annexing proceedings from the lower court for consideration taking into account the fact that he has already benefitted from the least severe sentence as punishment for robbery with violence upon conviction is mandatory death. Ten (10) years imprisonment was a slap on the wrist.
6. File closed.
7. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 28TH DAY OF MARCH, 2023R. E. ABURILIJUDGE