Ochieng v Republic [2023] KEHC 25608 (KLR)

Ochieng v Republic (Miscellaneous Criminal Application E069 of 2023) [2023] KEHC 25608 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25608 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Criminal Application E069 of 2023

RE Aburili, J

November 17, 2023

Between

Isaac Hassan Ochieng

Applicant

and

Republic

Respondent

(From the original conviction and sentence in Senior Principal Magistrate’s Court Criminal Case No. 810 of 2019 at Winam)

Ruling

1. The Applicant is a convict vide Winam Senior Principal Magistrate Criminal Case no 810 of 2019 where he was charged, convicted and sentenced to serve six (6) years imprisonment for the offence of robbery with violence contrary to Section 296(2) of the Penal Code.

2. He pleaded not guilty to the charge and he was tried and found guilty of the charge. There is no evidence that he has appealed. Vide his application dated 22nd June 2023, he seeks for orders of this court to consider Section 333(2) of the Criminal Procedure Code in that he was arrested on 26th September 2019 and that he was in custody for eleven (11) months before he was convicted yet the trial court did not take into account the period that he was in custody, as he was never released on bond pending trial.

3. The applicant had initially applied to this court vide Misc. Criminal Application no E076 of 2022 which was dismissed as he did not attach copies of proceedings for the court to peruse and consider if he was not on bond during trial.

4. I have considered the application dated 22nd June 2023 though filed on 6th November 2023 and the proceedings in Winam SPM Criminal Case no 810 of 2019. The charge sheet annexed shows that the applicant was arrested on 26th September 2019 and taken to court on 27th September 2019.

5. He took plea and was granted bond of ksh 600,000 with one surety of similar amount but there is no record of approval and or eventual release of the applicant on bond pending trial until he was convicted and sentenced on 28th August 2020.

6. For the above reasons, I agree that the applicant was in custody during the trial. In the sentencing remarks, I observe that the trial court did not take into account the period spent in custody by the convict hence this application.

7. In the premises, I allow the application dated 22nd June 2023 and order that the six (6) years imprisonment imposed on the Convict Isaac Hassan Ochieng on 26th August 2020 shall be calculated from date of his arrest on 26th September 2019.

8. I so order. This file is closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 17TH DAY OF NOVEMBER, 2023R. E. ABURILIJUDGE