[2022] KEHC 2986 (KLR)
The court allowed the withdrawal of the appeal after the appellant was informed of the State's notice of enhancement of sentence and chose to withdraw the appeal voluntarily. However, the trial court had failed to consider the period the appellant spent in custody during the trial, contrary to section 333(2) of the...
Source-derived case information.
- Citation
- [2022] KEHC 2986 (KLR)
- Parties
- Appellant: Dan Onyango Opiyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E023 of 2021
- Procedural Posture
- Criminal Appeal / Ruling on Withdrawal of Appeal and Sentence Computation
- Outcome
- Appeal marked as withdrawn; sentence computation rectified to account for custodial period.
- Judges
- RE Aburili
- Legal Topics
- Robbery With Violence, Manslaughter, Sentencing Principles, Enhancement of Sentence, Custodial Period Credit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Dan Onyango Opiyo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Withdrawal of Appeal and Sentence Computation
Legal Issues
- 1 Whether the appeal against conviction and sentence should be marked as withdrawn.
- 2 Whether the appellant is entitled to have the period spent in custody during trial considered in the computation of his sentence under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court allowed the withdrawal of the appeal after the appellant was informed of the State's notice of enhancement of sentence and chose to withdraw the appeal voluntarily. However, the trial court had failed to consider the period the appellant spent in custody during the trial, contrary to section 333(2) of the Criminal Procedure Code. The High Court rectified this by ordering that the 30-year concurrent imprisonment imposed for robbery with violence and manslaughter be computed from the date of the appellant's arrest, as there was no evidence of release on bond or escape from custody. This ensures compliance with statutory sentencing requirements and upholds the appellant's right to...
Court Disposition
Appeal marked as withdrawn; sentence computation rectified to account for custodial period.
Orders
- The appeal against conviction and sentence is marked as wholly withdrawn.
- The 30 years concurrent imprisonment imposed on the appellant shall be calculated from the date of arrest on 10/11/2018.
Full Case Text
Judgment text and source record
21 paragraphs
Opiyo v Republic (Criminal Appeal E023 of 2021) [2022] KEHC 2986 (KLR) (14 June 2022) (Ruling)
Neutral citation: [2022] KEHC 2986 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Appeal E023 of 2021
RE Aburili, J
June 14, 2022
Between
Dan Onyango Opiyo
Appellant
and
Republic
Respondent
(An Appeal arising from Judgment, Conviction and sentence in PM’s Bondo Criminal Case No. 480 of 2020 delivered by Hon. J.P. Nandi, Principal Magistrate on 27/9/2019)
Ruling
1. On application by the Appellant herein Dan Onyango Opiyo and who, upon the court informing him of the filed and served Notice of enhancement of sentence by the State, this appeal against conviction and sentence as filed on 7/12/2021 be and is hereby marked as wholly withdrawn.
2. However, as the convict was not given the benefit of section 333(2) of the Criminal Procedure Code, yet he was in prison custody during the period of the trial in the lower court, I hereby order that the 30 years concurrent imprisonment imposed on him on 27/9/2021 by the trial court upon conviction for offence of Robbery with violence contrary to section 296(2) of the Penal Code and Manslaughter contrary to section 202 as read with section 205 of the Penal Code shall be calculated from the date of appellant’s arrest on 10/11/2018 as per the charge sheet dated 28/8/2020 as there is no evidence that the court was released on bond or that he escaped form lawful custody. I note that during sentencing on 27/9/2021, the appellant prayed that the trial court considers the period spent in custody but this was not taken into account.
3. This Ruling and order to be typed and extracted and signaled to or submitted to Naivasha Maximum Security Prison for further action.
4. Orders accordingly.
5. This file is closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 14TH DAY OF JUNE, 2022R.E. ABURILIJUDGE