[2023] KEHC 19444 (KLR)
The court found that the appellant, Augustine Felix Otieno, had served the custodial sentence imposed upon him following the dismissal of his appeal. The prosecution confirmed that the appellant was pardoned by Presidential decree before completing the full term. As there was no lawful basis for continued detention,...
Source-derived case information.
- Citation
- [2023] KEHC 19444 (KLR)
- Parties
- Appellant: Augustine Felix Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E038 of 2021
- Procedural Posture
- Criminal Appeal / Ruling on Post Appeal Committal and Discharge
- Outcome
- appellant discharged and set at liberty; file closed
- Judges
- RE Aburili
- Legal Topics
- Appeal Dismissal, Sentence Execution, Presidential Pardon
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Augustine Felix Otieno
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Post Appeal Committal and Discharge
Legal Issues
- 1 Whether the appellant had served the sentence imposed after dismissal of his appeal.
- 2 Whether the appellant should be discharged following confirmation of sentence served and presidential pardon.
Ratio Decidendi
The court found that the appellant, Augustine Felix Otieno, had served the custodial sentence imposed upon him following the dismissal of his appeal. The prosecution confirmed that the appellant was pardoned by Presidential decree before completing the full term. As there was no lawful basis for continued detention, the court ordered his immediate discharge and liberty, closing the file and directing the return of the lower court file to the trial court.
Court Disposition
appellant discharged and set at liberty; file closed
Orders
- The appellant Augustine Felix Otieno is hereby set at liberty forthwith unless otherwise lawfully held.
- The file is closed and the lower court file shall be returned to Nyando Law Courts together with a copy of the High Court judgment and this ruling.
Full Case Text
Judgment text and source record
25 paragraphs
Otieno v Republic (Criminal Appeal E038 of 2021) [2023] KEHC 19444 (KLR) (27 June 2023) (Ruling)
Neutral citation: [2023] KEHC 19444 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Appeal E038 of 2021
RE Aburili, J
June 27, 2023
Between
Augustine Felix Otieno
Appellant
and
Republic
Respondent
(Arising from the original conviction and sentence in Nyando Senior Principal Magistrate’s Court Criminal Case No. E242 of 2021 delivered on 8th September 2021 by Hon. R. S. Kipngeno (PM)
Ruling
1. The Appellant was convicted and sentenced to serve one (1) year in prison. However, the trial court granted him bond on the same terms as the bond pending appeal. He later filed this appeal which was heard and dismissed on November 22, 2022.
2. The lower court file is still here in the High Court hence there was no way of knowing if the Appellant was later arrested and committed to prison.
3. The Appellant was arrested and brought to this court after the surety was summoned to avail the appellant. He submits that the lower court, upon learning of the dismissal of the appeal had him arrested and committed to jail for the one (1) year prison term on a skeleton file.
4. This information was not within the knowledge of this court and the prosecutor. The prosecution have verified the information from prison and confirmed that indeed the Appellant has served sentence although he was pardoned before completing the term via Presidential pardon on June 11, 2023.
5. For the above reasons and as the Appellant has served his term in prison, he is hereby discharged.
6. Therefore, unless otherwise lawfully held, the Appellant Augustine Felix Otieno is hereby set at liberty forthwith.
7. This file is now closed and the lower court file shall forthwith be returned to Nyando Law Courts together with a copy of Judgment of this court rendered on November 22, 2022 and this Ruling.
8. File closed.
9. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 27TH DAY OF JUNE, 2023R. E. ABURILIJUDGE