[2023] KEHC 3280 (KLR)
The application was dismissed because the applicant failed to provide sufficient evidence that he was not released on bond during trial and did not disclose the date of his arrest. Without annexing the lower court proceedings or other proof, the court could not verify the claim that two years spent in custody were...
Source-derived case information.
- Citation
- [2023] KEHC 3280 (KLR)
- Parties
- Applicant: John Kennedy Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E073 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Consideration of Time Spent in Custody
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentencing, Time Spent in Custody, Sexual Offences, Defilement
- 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
John Kennedy Otieno
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Consideration of Time Spent in Custody
Legal Issues
- 1 Whether the period spent in custody by the applicant prior to sentencing should be considered in computing his sentence.
- 2 Whether the applicant provided sufficient evidence to prove he was not released on bond pending trial.
Ratio Decidendi
The application was dismissed because the applicant failed to provide sufficient evidence that he was not released on bond during trial and did not disclose the date of his arrest. Without annexing the lower court proceedings or other proof, the court could not verify the claim that two years spent in custody were not considered in sentencing. The court held that the applicant bears the burden of proof and must support such applications with adequate documentation.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- The applicant may file a fresh application with full court proceedings.
Full Case Text
Judgment text and source record
21 paragraphs
Otieno v Republic (Miscellaneous Criminal Application E073 of 2022) [2023] KEHC 3280 (KLR) (12 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3280 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E073 of 2022
RE Aburili, J
April 12, 2023
Between
John Kennedy Otieno
Applicant
and
Republic
Respondent
Ruling
1. This application was filed on July 8, 2022 by the Applicant/Convict John Kennedy Otieno who was sentenced to serve ten (10) years imprisonment for the offence of defilement contrary to Section 9(1) as read with section 9(2) of the Sexual Offences Act vide Nyando Senior Principal Magistrate’s Court Sexual Offences Case No. 963 of 2016.
2. He claims that the period he spent in custody two (2) years was not taken into account. However, as the convict was entitled to bond and he has not bothered to annex copies of proceedings in the lower court to confirm to this court that he was not released on bond pending trial, that notwithstanding, the prisons authorities can confirm whether the convict was in prison or not during his trial as the sentence is short term.
3. The challenge is that the applicant has not disclosed the date of his arrest.
4. For the above reasons, I find this application not supported. It is hereby dismissed.
5. The applicant can file a fresh application for consideration but with full court proceedings. Order to be extracted and served.
6. This file is hereby closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 12THDAY OF APRIL, 2023R. E. ABURILIJUDGE