Mboya v Republic [2023] KEHC 25076 (KLR)

Mboya v Republic (Criminal Revision E124 of 2023) [2023] KEHC 25076 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25076 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Revision E124 of 2023

RE Aburili, J

November 8, 2023

Between

Carilus Omondi Mboya

Applicant

and

Republic

Respondent

(From the original conviction and sentence in High Court Criminal Case No. 6 of 2009 at Kisumu)

Ruling

1. This is a prison decongestion file. The Convict Carilus Omondi Mboya is aged sixty (60) years old. He has been in prison from 2015 when he was sentenced to death by this court on June 30, 2015 for the offence of murder contrary to section 203 as read with section 204 of the Penal Code, vide Kisumu High Court Criminal Case No. 6 of 2009 which death sentence was set aside and substituted with thirty (30) years imprisonment on October 31, 2019 vide Kisumu Court of Appeal Criminal Appeal No. 73 of 2015.

2. He was on bond during the trial prior to sentencing. The documents on record show that he was released on bond on February 6, 2013.

3. From the Archivist’s letter dated September 25, 2023, the original casefile was not traced although some essential documents were found in prison and sent to this court.

4. It is not clear when the convict was arrested but he appears to have now received remission and instead of his date of release being May 27, 2041, he shall now be released on May 28, 2031 which is ten years earlier.

5. As it is not possible to tell exactly when the convict was arrested and held in custody prior to his being released on bond, I am unable to determine the period spent in custody by the convict prior to his release on bond for consideration alongside the 30 years’ prison term that he is serving.

6. On whether I can review the remaining eight (8) years or so to the benefit of the convict, I find no material before me to support a sentence review, considering the number of years remaining and the offence committed.

7. Accordingly, I decline to review the term sentence imposed on the convict by the Court of Appeal.

8. This file is closed although the Convict is at liberty to file a fresh request citing the date when he was arrested.

9. File closed.

10. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 8TH DAY OF NOVEMBER, 2023. R. E. ABURILIJUDGE