Opiyo v Republic [2022] KEHC 2986 (KLR)

Opiyo v Republic (Criminal Appeal E023 of 2021) [2022] KEHC 2986 (KLR) (14 June 2022) (Ruling)

Neutral citation: [2022] KEHC 2986 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Appeal E023 of 2021

RE Aburili, J

June 14, 2022

Between

Dan Onyango Opiyo

Appellant

and

Republic

Respondent

(An Appeal arising from Judgment, Conviction and sentence in PM’s Bondo Criminal Case No. 480 of 2020 delivered by Hon. J.P. Nandi, Principal Magistrate on 27/9/2019)

Ruling

1. On application by the Appellant herein Dan Onyango Opiyo and who, upon the court informing him of the filed and served Notice of enhancement of sentence by the State, this appeal against conviction and sentence as filed on 7/12/2021 be and is hereby marked as wholly withdrawn.

2. However, as the convict was not given the benefit of section 333(2) of the Criminal Procedure Code, yet he was in prison custody during the period of the trial in the lower court, I hereby order that the 30 years concurrent imprisonment imposed on him on 27/9/2021 by the trial court upon conviction for offence of Robbery with violence contrary to section 296(2) of the Penal Code and Manslaughter contrary to section 202 as read with section 205 of the Penal Code shall be calculated from the date of appellant’s arrest on 10/11/2018 as per the charge sheet dated 28/8/2020 as there is no evidence that the court was released on bond or that he escaped form lawful custody. I note that during sentencing on 27/9/2021, the appellant prayed that the trial court considers the period spent in custody but this was not taken into account.

3. This Ruling and order to be typed and extracted and signaled to or submitted to Naivasha Maximum Security Prison for further action.

4. Orders accordingly.

5. This file is closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 14TH DAY OF JUNE, 2022R.E. ABURILIJUDGE