Ondiek v Republic [2023] KEHC 23860 (KLR)

Ondiek v Republic (Miscellaneous Criminal Application E046 of 2023) [2023] KEHC 23860 (KLR) (6 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23860 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Criminal Application E046 of 2023

RE Aburili, J

October 6, 2023

Between

Robert Ondiek

Applicant

and

Republic

Respondent

((From the original conviction and sentence in Chief Magistrate’s Court Criminal Sexual Offences Case No 5 of 2020 at Nyamira)

Ruling

1. This application filed on 13th September 2023 by Robert Ondiek seeks for orders that this court takes into account section 333(2) of the Criminal Procedure Code in computing the ten (10) years imprisonment meted out on the convict/applicant herein for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, which is to consider the period he spent in custody during the trial.

2. The applicant urges this court to call for the trial court file from Nyamira in Nyamira Chief Magistrate’s Court Sexual Offences Case No 5 of 2020.

3. Ordinarily, this court would have entertained such an application and even granted the orders sought. However, the trial of the applicant having taken place at Nyamira Chief Magistrate’s Court which has a High Court capable of dealing with such matters, I find that the filing of this application in Kisumu High Court is mischievous and misplaced.

4. I decline the application and dismiss it.

5. This file is closed.

6. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 6TH DAY OF OCTOBER, 2023R. E. ABURILIJUDGE