[2023] KEHC 3281 (KLR)
The court held that it could not grant the application to consider the pre-sentence custody period because the applicant failed to provide the necessary court proceedings and judgment to substantiate his claim. The lower court file was not available, and the court could not take judicial notice of the applicant's...
Source-derived case information.
- Citation
- [2023] KEHC 3281 (KLR)
- Parties
- Applicant: Joel Sande Tuti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E029 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Consideration of Pre Sentence Custody Period
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentencing, Pre Sentence Custody, Sexual Offences, Appeals, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Sande Tuti
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Consideration of Pre Sentence Custody Period
Legal Issues
- 1 Whether the period spent in custody prior to sentencing should be considered in computing the applicant's sentence.
- 2 Whether the applicant discharged his duty to provide necessary court documents to support his application.
Ratio Decidendi
The court held that it could not grant the application to consider the pre-sentence custody period because the applicant failed to provide the necessary court proceedings and judgment to substantiate his claim. The lower court file was not available, and the court could not take judicial notice of the applicant's alleged period in custody without documentary evidence. The application was therefore dismissed, but the applicant was granted liberty to file a fresh application with the requisite documents annexed.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- The applicant may file a fresh application annexing copies of court proceedings.
Full Case Text
Judgment text and source record
23 paragraphs
Tuti v Republic (Miscellaneous Criminal Application E029 of 2022) [2023] KEHC 3281 (KLR) (12 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3281 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E029 of 2022
RE Aburili, J
April 12, 2023
Between
Joel Sande Tuti
Applicant
and
Republic
Respondent
Ruling
1. The Convict/Applicant is Joel Sande Tuti. He was convicted and sentenced to serve twenty (20) years imprisonment for the offence of Gang Rape contrary to Section 10 of the Sexual Offences Act No 3 of 2006; vide Maseno Senior Principal Magistrate’s Court Sexual Offences Case No 396 of 2014 on January 31, 2018.
2. He appealed and vide HCCRA No 13 of 2018, the sentence was reduced to ten (10) years imprisonment.
3. The Convict now applies that the four (4) years that he spent in custody before being sentenced be taken into account, as the same was not considered during sentencing.
4. This court called for the lower court file which has not been availed for the last one (1) years.
5. The Convict was under a duty to file his copies of proceedings and judgement since he pursued his case up to appeal level.
6. This court cannot take judicial notice that the applicant was in custody during trial as he was charged in 2014.
7. I dismiss the application. The applicant can file a fresh application annexing copies of court proceedings which were served on him on appeal.
8. This file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 12TH DAY OF APRIL, 2023. R. E. ABURILIJUDGE