[2023] KEHC 25606 (KLR)
The High Court found that the applicant was in continuous custody from the date of his arrest on November 9, 2014, until his conviction and sentencing on April 24, 2018. The trial court failed to consider this period in computing the applicant's sentence, contrary to section 333(2) of the Criminal Procedure Code....
Source-derived case information.
- Citation
- [2023] KEHC 25606 (KLR)
- Parties
- Applicant: Pius Oduori Owino; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E068 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Sentence Computation
- Outcome
- application allowed
- Judges
- RE Aburili
- Legal Topics
- Sentencing Computation, Pretrial Custody Credit, Manslaughter, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pius Oduori Owino
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Sentence Computation
Legal Issues
- 1 Whether the period spent in pretrial custody by the applicant should be considered in computing his sentence as required by section 333(2) of the Criminal Procedure Code.
- 2 Whether the trial court erred by failing to take into account the applicant's pre-sentence custody period.
Ratio Decidendi
The High Court found that the applicant was in continuous custody from the date of his arrest on November 9, 2014, until his conviction and sentencing on April 24, 2018. The trial court failed to consider this period in computing the applicant's sentence, contrary to section 333(2) of the Criminal Procedure Code. The High Court invoked its powers to correct this omission and ordered that the applicant's ten-year sentence be calculated from the date of his arrest, ensuring compliance with statutory requirements and upholding the applicant's right to have pretrial custody considered in sentencing.
Court Disposition
application allowed
Orders
- The ten (10) years imprisonment imposed on the applicant shall be calculated from November 9, 2014, the date of his arrest and commencement of custody.
- The file is now closed.
Full Case Text
Judgment text and source record
23 paragraphs
Owino v Republic (Miscellaneous Criminal Application E068 of 2023) [2023] KEHC 25606 (KLR) (17 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25606 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E068 of 2023
RE Aburili, J
November 17, 2023
Between
Pius Oduori Owino
Applicant
and
Republic
Respondent
(From the original conviction and sentence in Senior Principal Magistrate’s Court Criminal Case No. 1442 of 2014 at Maseno)
Ruling
1. The Applicant is a convict vide Maseno Senior Principal Magistrate Criminal Canse No. 1442 of 2014 wherein he was charged, tried and convicted of the offence of Manslaughter contrary to section 202 as read with section 205 of the Penal Code and sentenced to serve ten (10) years imprisonment on April 24, 2018.
2. Initially, the Applicant faced the charge of Murder which was reduced to Manslaughter. In addition, the convict herein had pleaded guilty to the charge when he appeared in court for plea but the plea of guilty which saw him being handed thirty (30) years imprisonment was set aside by the High Court on appeal as the same was found to have been an equivocal plea hence the convict was ordered to be retried afresh. That explains the delay in determining the case before the trial court, from 2014.
3. The Applicant/Convict has annexed copies of proceedings in Maseno SPM Criminal Case No. 1142 of 2014 and Judgment therein which shows that he was in custody all along from date of his arrest on November 9, 2014 until his conviction on 24th April 2018, which was a period of three (3) years and seven (7) months, although he claims that from November 9, 2014 to 24th April 2018 is 2 years and 4 months.
4. In his mitigation, the convict requested that the period he spent in custody be considered but the trial court did not consider that period hence this application which comes after his appeal vide HCCRA No. 82 of 2015 was dismissed and Misc. Criminal Application No. E097 of 021 was dismissed too.
5. As there is no evidence that the convict/applicant was ever released on bond during the trial in the lower court, I hereby invoke the provisions of section 333(2) of the Criminal Procedure Code and order that the ten (10) years imprisonment imposed on the applicant herein Puis Oduori Owino shall be calculated from November 9, 2014 when he was arrested and held in custody.
6. I so order.
7. This file is now closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 17TH DAY OF NOVEMBER, 2023. R. E. ABURILIJUDGE