[2022] KEHC 15147 (KLR)
The court found that the applicant was only in custody from 6/10/2014 to 5/11/2014, a period of one month, before being released on bond pending trial. The claim of seven years spent in custody was not supported by the record. The court held that only the one month period should be taken into account in computing...
Source-derived case information.
- Citation
- [2022] KEHC 15147 (KLR)
- Parties
- Applicant: Jack Mbeya Oyomo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E067 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Resentencing Application
- Outcome
- application partially allowed
- Judges
- RE Aburili
- Legal Topics
- Defilement, Sexual Offences Act, Resentencing, Sentence Computation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jack Mbeya Oyomo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Resentencing Application
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in custody prior to conviction taken into account in computing his sentence.
- 2 Whether the applicant is entitled to have seven years deducted from his sentence as claimed.
Ratio Decidendi
The court found that the applicant was only in custody from 6/10/2014 to 5/11/2014, a period of one month, before being released on bond pending trial. The claim of seven years spent in custody was not supported by the record. The court held that only the one month period should be taken into account in computing the applicant's 15-year sentence, as required by section 333(2) of the Criminal Procedure Code. The application was therefore partially allowed to the extent that the one month period would be considered, but not the seven years claimed by the applicant.
Court Disposition
application partially allowed
Orders
- The period between 6/10/2014 and 5/11/2014 shall be taken into account in computing the applicant's 15-year sentence.
- The application is otherwise dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
Oyomo v Republic (Miscellaneous Criminal Application E067 of 2021) [2022] KEHC 15147 (KLR) (8 November 2022) (Ruling)
Neutral citation: [2022] KEHC 15147 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E067 of 2021
RE Aburili, J
November 8, 2022
Between
Jack Mbeya Oyomo
Applicant
and
Republic
Respondent
(Application for resentencing in Winam Cr. No. 1441/2014 and in Kisumu HCCRA No. 15 of 2017)
Ruling
1. The applicant herein was convicted and sentenced to serve 20 years imprisonment vide Winam Cr. XXX/2014 following the charge of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act.
2. The conviction and sentence imposed on 28/2/2012 followed the amendment of the charge sheet placing the offence to fall under section 8(1) as read with section 8(4) of the Sexual Offences Act, showing the minor was aged 15 years. The applicant herein denied the offence. He appealed to the High Court vide HCRA XX/2017 which appeal against conviction was dismissed but the appeal against sentence was allowed to the extent that an illegal sentence of 20 years imprisonment had been imposed on him yet the section 8(4) of the Act provides for fifteen years imprisonment. He now claims that he spent 7 years in custody which he wants taken into account.
3. I have perused the original Winam Cr. Case No. 1441/2014. It shows that the applicant/ convict herein was arrested on 6/10/2014.
4. On 5/11/2014, his Surety was approved and on 5/11/2014 the same day, he was released on bond pending trial until the case was heard and determined. His sentence was also reduced by 5 years on appeal.
5. This court does not understand where the 7 years are coming from. The only period that I order to be taken into account is between 6/10/2014, date of arrest and 5/11/2014, date of release on bond hence one month and Not the seven years claimed by the applicant.
6. Accordingly, the application filed on 29/7/2021 is partially allowed to the extent that in computing the 15 years imprisonment imposed on the applicant convict herein, the period between 6/10/2014 and 5/11/2014 shall be taken into account and not the seven years sought.
7. I so order.
8. File closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 8TH DAY OF NOVEMBER, 2022R.E. ABURILIJUDGE