[2022] KEHC 14028 (KLR)
The court found that the applicant, having been in custody prior to sentencing, was entitled under section 333(2) of the Criminal Procedure Code to have the period spent in custody taken into account when computing his sentence. The court ordered that the applicant's 20-year imprisonment term should be calculated...
Source-derived case information.
- Citation
- [2022] KEHC 14028 (KLR)
- Parties
- Applicant: Fredrick Onyango Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E092 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Consideration of Pre Sentence Custody Period
- Outcome
- application allowed
- Judges
- RE Aburili
- Legal Topics
- Sentencing, Pre Sentence Custody, Sexual Offences, Defilement, Criminal Procedure, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Onyango Otieno
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Consideration of Pre Sentence Custody Period
Legal Issues
- 1 Whether the period spent in custody prior to sentencing should be considered in computing the applicant's sentence as per section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant is entitled to have his sentence run from the date of arrest.
Ratio Decidendi
The court found that the applicant, having been in custody prior to sentencing, was entitled under section 333(2) of the Criminal Procedure Code to have the period spent in custody taken into account when computing his sentence. The court ordered that the applicant's 20-year imprisonment term should be calculated from the date of his arrest, 17/1/2016, thereby ensuring compliance with statutory and constitutional requirements regarding fair sentencing and recognition of pre-sentence custody.
Court Disposition
application allowed
Orders
- The 20 years imprisonment shall be calculated from the date of arrest on 17/1/2016 as required under section 333(2) of the Criminal Procedure Code.
- File closed.
Full Case Text
Judgment text and source record
23 paragraphs
Otieno v Republic (Miscellaneous Criminal Application E092 of 2022) [2022] KEHC 14028 (KLR) (11 October 2022) (Ruling)
Neutral citation: [2022] KEHC 14028 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E092 of 2022
RE Aburili, J
October 11, 2022
Between
Fredrick Onyango Otieno
Applicant
and
Republic
Respondent
(Being an Application arising from Judgment, conviction and sentence in the Principal Magistrate’s court at Ukwala in Criminal Case No. 30 of 2016 by Hon. C.N. Wanyama Resident Magistrate on 28. 9.2016 AND in Siaya HCRA No. 134 of 2016 by T.W. Cherere J on 8. 4.2019)
Ruling
1. The applicant is a convict in Ukwala PM Cr. 30/2016 and his appeal to this court vide HCRA 134/2016 was dismissed on 8/4/2019 by T.W. Cherere J. He faced the charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offence Act.
2. He has not appealed further. He now seeks in his application filed on 19/8/2022 that this court do consider the period spent in custody prior to sentencing, taking into account the provisions of Section 33(2) of the Criminal Procedure Code and Article 50(2) (p) (q) of the Constitution.
3. I have considered the application. I observe that the applicant was sentenced to serve 20 years imprisonment on 28/9/2016 by Hon. C.N. Wanyama, Resident Magistrate. That was the minimum mandatory sentence.
4. During the trial, the applicant was not on bond. He was arrested on 17/11/2016 as per the charge sheet and he first appeared in court on 17/1/2016. He has been in prison for five years now.
5. I hereby allow the application and order that the 20 years imprisonment shall be calculated from the date of his arrest on 17/1/2016, as required under section 333(2) of the Criminal Procedure Code.
6. I so order.
7. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 11THDAY OF OCTOBER, 2022R.E. ABURILIJUDGE