Christopher Otieno Onyango v Republic [2019] KEHC 3978 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MILIMANI

CRIMINAL DIVISION

MISC. CR. APPLICATION NO. 14 OF 2019

CHRISTOPHER OTIENO ONYANGO..............................APPLICANT

VERSUS

REPUBLIC....................................................................... RESPONDENT

RULING

1. The Applicant was charged with robbery with violence and was subsequently convicted and sentenced to serve six years imprisonment.  The sentence was passed on 4th April, 2017.  He did not appeal on the sentence or conviction.

2. Before this court is a Notice of Motion application filed on 24th January, 2019.  It seeks a review of the sentence, basically urging that the period he was in remand custody be taken to constitute part of the sentence.

3. Under Section 333(2) of the Criminal Procedure Code, the court is called upon to take into account the period an accused was in remand custody prior to sentencing.  In the instant case, the learned trial magistrate failed to observe this guideline which implies that the Applicant will be in custody for a longer period than the sentence.

4. Consequently, the application herein must succeed.  I order that the sentence starts running from 3rd March, 2016, the date of the Applicant’s arrest.

Dated and Delivered at Nairobi This 30th September, 2019.

G.W.NGENYE-MACHARIA

JUDGE

In the presence of:

1. Applicant present in person

2. Mr. Momanyi for the Respondent