[2022] KEHC 11913 (KLR)

Owino v Republic (Criminal Petition E029 of 2020) [2022] KEHC 11913 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11913 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Petition E029 of 2020

FA Ochieng, J

June 9, 2022

Between

Solomon Oluoch Owino

Applicant

and

Republic

Respondent

Judgment

1. The Petitioner, Solomon Oluoch Owino, was convicted for the offence of Defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. He was then sentenced to Life Imprisonment.1. He has now invoked the provisions of Section 333 (2) of the Criminal Procedure Code, and has requested the Court to consider the period which he spent in custody whilst he was still on trial.2. Secondly, he invoked the decision of the Supreme Court in the Muruatetu Case. The said decision declared the mandatory nature of the Death Penalty, for those convicted of Murder, to be unconstitutional.3. Whilst canvassing his petition, the Petitioner drew the Court’s attention to the fact that at the time when he committed the offence, he was 23 years old. In the circumstances, he deemed himself as “a young man who had a long way to go in life …….”4. However, following his incarceration, his dreams were shattered.5. He told this court that his family was overwhelmed with the burden of responsibilities, of taking care of the vulnerable family.6. The Petitioner did not provide the Court with any information concerning the family about which he was making reference. Therefore, the Court was left in the dark about whether the Petitioner was making reference to his wife and children, or his parents and siblings.7. In the absence of all requisite information, the Court is unable to make informed decisions.8. I find that the Petitioner failed to satisfy the Court that his life and the future life of his family would be miserable due to his continued incarceration.9. It cannot be assumed that because the Petitioner was imprisoned, the future life of his family would be rendered miserable. I say so because I have come across a number of cases in which the community and the family of a convict would prefer to have him kept in custody, rather than being with him.10. Therefore, if the Petitioner had intended to persuade the Court about his particular circumstances, it was incumbent upon him to make available the necessary information. He failed to do so.11. The Petitioner also made reference to his alleged medical condition. However, he did not provide any documents which would have enabled the Court verify whether or not he was suffering from chronic ulcers.12. However, I also find that if the Petitioner’s family would be miserable due to his imprisonment, or even if he was suffering from chronic ulcers, those would not be reasons that would warrant the application of Section 333 (2) of the Criminal Procedure Code to his case.13. Section 333 (2) was enacted so as to impose an obligation on the court to take into account the period which an accused person had spent in custody, when he was still on trial.14. To my mind, the said enactment is in tandem with the fundamental constitutional rights enshrined in Article 49 (1) (h) of the Constitution.15. An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.16. It therefore follows that when the accused is held in custody and if he should ultimately be convicted and then sentenced to imprisonment; it was only fair that such time as he had already spent in custody should not be overlooked when computing the period of the sentence being imposed.17. Therefore, if an accused was in remand custody for 6 months whilst he was still on trial, the Court and the Prison authorities should take into account the said 6 months when computing the actual period which the person should serve in jail, after he is convicted. In effect, if such a person was sentenced to 18 months imprisonment, without an express statement by the trial court, making it very clear that the court had already given consideration to the 6 months already spent in custody; the prison authorities or the convict would be entitled to ask the court to direct that his actual stay in jail be reduced by 6 months.18. In this case, the sentence was for Life Imprisonment.19. The Petitioner had spent 3 Months and 8 Days in remand custody. Therefore, if the sentence was for a defined duration, the same would have had to be reduced by 3 Months and 8 Days.20. However, in Kenya a sentence of Life Imprisonment is for an indefinite period. It is literally a sentence which the convict would serve until his life comes to an end.21. In the circumstances, I find that neither the Court nor the prison authorities have the ability to discern the duration which could then be reduced.22. It is only God Almighty who knows how long He will keep the Petitioner alive.23. In the circumstances, if the Court were to direct the prison authorities to deduct from the indefinite period, the Court would have acted in vain.24. It is a cardinal rule that Courts must not act in vain.25. I therefore decline to give an order which would be impossible to give effect to.26. The Petition is dismissed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 9TH DAY OF JUNE 2022FRED A. OCHIENGJUDGE