[2022] KEHC 14082 (KLR)
The court found that the petition and notice of motion filed by the applicant were incomprehensible and improperly before the court. The pleadings referenced a different criminal case involving another accused person and an unrelated offence. As a result, the court struck out both the petition and the application,...
Source-derived case information.
- Citation
- [2022] KEHC 14082 (KLR)
- Parties
- Applicant: John Odhiambo Opilo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E007 of 2022
- Procedural Posture
- Criminal Petition / Judgment
- Outcome
- petition and application struck out; file closed
- Judges
- RE Aburili
- Legal Topics
- Resentencing, Section 333 2 Criminal Procedure Code, Sexual Offences Act, Defilement, Pleadings Struck Out
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Odhiambo Opilo
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Judgment
Legal Issues
- 1 Whether the petition and notice of motion filed by the applicant are properly before the court and comprehensible for determination.
- 2 Whether the court should consider resentencing the applicant under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the petition and notice of motion filed by the applicant were incomprehensible and improperly before the court. The pleadings referenced a different criminal case involving another accused person and an unrelated offence. As a result, the court struck out both the petition and the application, finding no basis to consider the request for resentencing under section 333(2) of the Criminal Procedure Code. The lower court file was ordered to be returned as it had no relation to the applicant, and the file was closed.
Court Disposition
petition and application struck out; file closed
Orders
- The petition and notice of motion are struck out.
- The registry is to return the lower court file which has no relation to the convict herein.
Full Case Text
Judgment text and source record
21 paragraphs
Opilo v Republic (Criminal Petition E007 of 2022) [2022] KEHC 14082 (KLR) (12 October 2022) (Judgment)
Neutral citation: [2022] KEHC 14082 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Petition E007 of 2022
RE Aburili, J
October 12, 2022
Between
John Odhiambo Opilo
Petitioner
and
Republic
Respondent
Judgment
1. By a petition dated July 8, 2022 and filed in court on 27/7/2022, the petitioner herein John Odhiambo Opilo seeks from this court orders of taking into account the provisions of section 333(2) of the Criminal Procedure Code. The petitioner claims that he was convicted for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offence Act and sentenced to serve 20 years imprisonment. He now wants resentencing.
2. However, besides his petition, he has also filed a notice of motion dated June 8, 2022 seeking for resentencing. This court cannot tell which of the two application and petition, should be considered on its merit.
3. Furthermore, the petitioner/applicant has cited Criminal Case No 278/2015 which when availed to this court bears a different accused person of George Odhiambo Opiyo whose case was withdrawn under section 204 of the Criminal Procedure Code on July 1, 2015 and the offence was assault causing actual bodily harm, two counts thereof.
4. The petitioner/applicant’s petition/application cannot be comprehended by this court. The two pleadings are hereby struck out.
5. The registry to return the lower court file which has no relation to the convict herein.
6. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 12THDAY OF OCTOBER, 2022R.E. ABURILIJUDGE