[2023] KEHC 24326 (KLR)
The court held that it lacked jurisdiction to consider the application for time spent in custody under section 333(2) of the Criminal Procedure Code because the conviction and sentence originated from the Migori High Court, not the Kisumu High Court. The absence of the trial court record further precluded the Kisumu...
Source-derived case information.
- Citation
- [2023] KEHC 24326 (KLR)
- Parties
- Applicant: Stephen Odhiambo Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E049 of 2023
- 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 struck out
- Judges
- RE Aburili
- Legal Topics
- Sentencing Procedure, Time Spent in Custody, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Odhiambo Onyango
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 the High Court at Kisumu has jurisdiction to consider time spent in custody under section 333(2) of the Criminal Procedure Code for a conviction from Migori High Court.
- 2 Whether the application was properly filed in the correct court.
Ratio Decidendi
The court held that it lacked jurisdiction to consider the application for time spent in custody under section 333(2) of the Criminal Procedure Code because the conviction and sentence originated from the Migori High Court, not the Kisumu High Court. The absence of the trial court record further precluded the Kisumu High Court from making any determination. The court found that the applicant was aware of the proper procedure and forum, especially after the judge's recent visit to the prison where such matters were clarified. The application was deemed to be an act of forum shopping and was therefore struck out for being filed in the wrong court.
Court Disposition
application struck out
Orders
- The application dated September 11, 2023 is struck out for having been filed in the wrong court.
- The file is closed.
Full Case Text
Judgment text and source record
24 paragraphs
Onyango v Republic (Miscellaneous Criminal Application E049 of 2023) [2023] KEHC 24326 (KLR) (27 October 2023) (Ruling)
Neutral citation: [2023] KEHC 24326 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E049 of 2023
RE Aburili, J
October 27, 2023
Between
Stephen Odhiambo Onyango
Applicant
and
Republic
Respondent
(Arising from the original conviction and sentence in High Court Criminal Case No 37 of 2014 at Migori)
Ruling
1. The applicant was convicted vide Migori HC Criminal Case No. 37 of 2014 and his appeal vide Kisumu Court of Appeal Criminal Appeal No. 04 of 2016 was dismissed.
2. He now applies to this court for consideration of the time spent in custody prior to his conviction as stipulated in section 333(2) of the Criminal Procedure Code.
3. This court has not trial court record from which it can make reference and apply the Section of the law cited.
4. In addition, this court is not a conduit court for referring cases to the court of original jurisdiction.
5. The applicant who is serving in Kisumu Maximum Prison knows this very well as I have visited the said prison and addressed the convicts on which courts they should address their applications for either resentencing, leave to appeal out of time, appeals or application of section 333(2) of the Criminal Procedure Code.
6. I find this application to have been deliberately filed in this court in a forum shopping exercise, especially after my visit to prisons in September 2023.
7. The application dated September 11, 2023 is hereby struck out for having been filed in a wrong court.
8. The file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 27TH DAY OF OCTOBER, 2023R. E. ABURILIJUDGE