Odhiambo v Republic [2022] KEHC 15088 (KLR)

Odhiambo v Republic (Miscellaneous Criminal Application E040 of 2021) [2022] KEHC 15088 (KLR) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15088 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Criminal Application E040 of 2021

RE Aburili, J

November 8, 2022

Between

Henry Collins Odhiambo

Applicant

and

Republic

Respondent

(Application for resentencing in Kisumu HC Cr. 3 of 2003)

Ruling

1. This matter was filed in court on 12/4/2021.

2. The applicant is a convict in Kisumu HC Cr. Case No. 3 of 2003 wherein he was charged with the offence of Murder contrary to Section 204 of the Penal Code vide Information dated November 13, 2002. He was convicted by Hon B.K Tanui J on 2/3/2006 and sentenced to death. From the letter dated November 11, 2019 signed by the Officer Incharge Kisumu Maximum Prison, the applicant convict’s death sentence was commuted to life imprisonment in 2009. It follows that the death sentence imposed is no longer in force.

3. The applicant however claims in his application filed on 12/4/2021 that he was sentenced to serve 25 years imprisonment and that he wants this court to consider the time he spent in custody during the trial. He did submit on 28/9/2021 that he only wanted the period he spent in custody during his trial to be taken into account.

4. However, from the proceedings, the said section which is Section 333 (2) of the Criminal Procedure Code is inapplicable because the applicant is serving life imprisonment which is a lesser sentence and not the death sentence imposed on him by the High Court.

5. For the reasons that the applicant is serving a life sentence imposed by the Court of Appeal and not a term sentence, contrary to his assertions, I find this application incapable of being granted. I decline it and dismiss it. File closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 8TH DAY OF NOVEMBER, 2022. R.E. ABURILIJUDGE