[2023] KEHC 2974 (KLR)
The court held that although the applicant had already benefited from resentencing to a less severe sentence, he was entitled to have the period spent in custody prior to sentencing taken into account under section 333(2) of the Criminal Procedure Code. Since the applicant was not on bond during trial, the...
Source-derived case information.
- Citation
- [2023] KEHC 2974 (KLR)
- Parties
- Applicant: Elphas Kengo Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E126 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Computation
- Outcome
- Application allowed. The applicant's thirty-year sentence to be computed from November 3, 2003, the date of arrest.
- Judges
- RE Aburili
- Legal Topics
- Resentencing, Sentence Computation, Time Spent in Custody, Robbery With Violence, Rape, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elphas Kengo Onyango
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Computation
Legal Issues
- 1 Whether the period spent in custody prior to sentencing should be taken into account in computing the applicant's sentence.
- 2 Whether the applicant is entitled to benefit from section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court held that although the applicant had already benefited from resentencing to a less severe sentence, he was entitled to have the period spent in custody prior to sentencing taken into account under section 333(2) of the Criminal Procedure Code. Since the applicant was not on bond during trial, the thirty-year sentence imposed upon resentencing should be computed from the date of his arrest, November 3, 2003. This ensures compliance with statutory requirements and fairness in the administration of criminal justice.
Court Disposition
Application allowed. The applicant's thirty-year sentence to be computed from November 3, 2003, the date of arrest.
Orders
- The thirty (30) years imprisonment reimposed on the applicant shall be calculated from November 3, 2003 when he was arrested.
- File closed.
Full Case Text
Judgment text and source record
20 paragraphs
Onyango v Republic (Miscellaneous Criminal Application E126 of 2022) [2023] KEHC 2974 (KLR) (27 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2974 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E126 of 2022
RE Aburili, J
March 27, 2023
Between
Elphas Kengo Onyango
Applicant
and
Republic
Respondent
Ruling
1. The convict/applicant herein Elphas Kengo Onyango was sentenced to death for the offence of robbery with violence and rape by Maseno Senior Principal Magistrate’s court. He claims that his appeals to this court vide HCCRA No 96 of 2004 and to the Court of Appeal vide Court of Appeal criminal appeal No 99 of 2007 were all dismissed and later death sentence was commuted to life imprisonment.
2. That vide Kisumu High Court petition No 7 of 2018, he was sentenced to serve thirty (30) years imprisonment.
3. He now prays that the seven (7) months and four (4) days spent in custody be taken into account, from his arrest, on November 3, 2003 to June 7, 2004.
4. I have considered the application, the convict already benefited from the least severe sentence through resentencing. However, as he was not on bond during trial, I hereby give him the benefit of section 333(2) of theCriminal Procedure Codeand order that the thirty (30) years imprisonment reimposed on him shall be calculated from November 3, 2003 when he was arrested.
5. I so order. File closed.
Dated, Signed and Delivered at Kisumu this 27thDay of March, 2023R. E. ABURILIJUDGE