[2021] KEHC 2098 (KLR)
The court found that the trial court had expressly considered the period the applicant spent in custody, as evidenced by the sentencing remarks which deducted three years from the total sentence. The applicant's mitigation regarding time spent in custody was addressed, and the sentence imposed was both legal and...
Source-derived case information.
- Citation
- [2021] KEHC 2098 (KLR)
- Parties
- Applicant: Violet Akinyi Onjiko; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E256 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Sentencing, Custodial Period Credit, Sexual Offences, Mitigation, Criminal Procedure, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Violet Akinyi Onjiko
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling
Legal Issues
- 1 Whether the period of 1½ years spent in custody by the applicant prior to sentencing should be credited towards her sentence under section 333(2) of the Criminal Procedure Code.
- 2 Whether the trial court properly considered the period spent in custody when passing sentence.
Ratio Decidendi
The court found that the trial court had expressly considered the period the applicant spent in custody, as evidenced by the sentencing remarks which deducted three years from the total sentence. The applicant's mitigation regarding time spent in custody was addressed, and the sentence imposed was both legal and proper. Therefore, there was no basis for further reduction or interference with the sentence, and the application lacked merit.
Court Disposition
application dismissed
Orders
- The application is dismissed wholly.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISCELLANEOUS CRIMINAL APPLICATION NO.E256 OF 2021
VIOLET AKINYI ONJIKO............................................................................APPLICANT
VERSUS
REPUBLIC...................................................................................................RESPONDENT
RULING
The applicant, VIOLENT AKINYI ONJIKO, has filed this application on 23. 7.2021 under certificate of urgency. The same, is seeking orders under section 333(2) of the Criminal Procedure Order. That the period of 1½ years that she spent in custody awaiting determination of her trial be accounted for in her sentence. The prosecution has however opposed this application on grounds that the said sentence was proper and with the law. It was however, conceded that the court may consider the period spent in custody if the trial court failed to do so.
It is clear that the applicant faced charges under section 8(1) as read with Section 8(2) and section 11(1) of the Sexual Offences Act, No. 3 of 2006.
I have considered the record of the proceedings herein. It is clear from the same that when the applicant was given the opportunity to mitigate, she only raised the issue of time she had spent in custody for consideration. The court, in sentencing the applicant, on 27. 9.2019, stated (at paragraph 12), that;
“The accused person is therefore sentenced to 10 years’ imprisonment less 3 years she has been in custody. She will therefore serve 7 years’ imprisonment.”
From the sentence proceedings, the court clearly considered the mitigation of the accused, and also a probation officers report. The sentence passed is no doubt legal and proper. With the court clearly noting mitigation of the applicant, and giving accounts of the period spent in custody, this application clearly lacks merit. The same is dismissed wholly. Orders accordingly.
D. O. OGEMBO
JUDGE
18. 11. 2021.
Court:
RULING READ OUT IN OPEN COURT IN PRESENCE OF THE APPLICANT (LANGATA) AND MS. AKUNJA FOR THE STATE.
D. O. OGEMBO
JUDGE
18. 11. 2021.