[2023] KEHC 23860 (KLR)
The High Court at Kisumu declined to entertain the application on the basis that the applicant's trial and conviction occurred at the Nyamira Chief Magistrate's Court, which falls within the jurisdiction of the Nyamira High Court. Since the Nyamira High Court is competent to handle such post-conviction applications,...
Source-derived case information.
- Citation
- [2023] KEHC 23860 (KLR)
- Parties
- Applicant: Robert Ondiek; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E046 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Consideration of Time Spent in Custody
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentencing, Time Spent in Custody, Defilement Offence, Sexual Offences Act, Jurisdiction, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Ondiek
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Consideration of Time Spent in Custody
Legal Issues
- 1 Whether the High Court at Kisumu has jurisdiction to consider the applicant's request for computation of sentence under section 333(2) of the Criminal Procedure Code.
- 2 Whether the period spent in custody by the applicant during trial should be considered in computing his sentence for defilement.
Ratio Decidendi
The High Court at Kisumu declined to entertain the application on the basis that the applicant's trial and conviction occurred at the Nyamira Chief Magistrate's Court, which falls within the jurisdiction of the Nyamira High Court. Since the Nyamira High Court is competent to handle such post-conviction applications, the filing of the application in Kisumu was deemed improper and an abuse of process. The court therefore dismissed the application without considering the merits of the request under section 333(2) of the Criminal Procedure Code.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- This file is closed.
Full Case Text
Judgment text and source record
22 paragraphs
Ondiek v Republic (Miscellaneous Criminal Application E046 of 2023) [2023] KEHC 23860 (KLR) (6 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23860 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E046 of 2023
RE Aburili, J
October 6, 2023
Between
Robert Ondiek
Applicant
and
Republic
Respondent
((From the original conviction and sentence in Chief Magistrate’s Court Criminal Sexual Offences Case No 5 of 2020 at Nyamira)
Ruling
1. This application filed on 13th September 2023 by Robert Ondiek seeks for orders that this court takes into account section 333(2) of the Criminal Procedure Code in computing the ten (10) years imprisonment meted out on the convict/applicant herein for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, which is to consider the period he spent in custody during the trial.
2. The applicant urges this court to call for the trial court file from Nyamira in Nyamira Chief Magistrate’s Court Sexual Offences Case No 5 of 2020.
3. Ordinarily, this court would have entertained such an application and even granted the orders sought. However, the trial of the applicant having taken place at Nyamira Chief Magistrate’s Court which has a High Court capable of dealing with such matters, I find that the filing of this application in Kisumu High Court is mischievous and misplaced.
4. I decline the application and dismiss it.
5. This file is closed.
6. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 6TH DAY OF OCTOBER, 2023R. E. ABURILIJUDGE