Orindi v Republic [2022] KEHC 10604 (KLR)

Orindi v Republic (Criminal Appeal E004 of 2022) [2022] KEHC 10604 (KLR) (14 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10604 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Appeal E004 of 2022

RE Aburili, J

June 14, 2022

Between

Steve Odhiambo Orindi

Appellant

and

Republic

Respondent

(An Appeal arising from Judgment, Conviction and sentence in PM’s Bondo Criminal Case No. 828 of 2018 delivered by Hon. M. Obiero, Principal Magistrate on 24/1/2019)

Ruling

1. On application by the appellant herein Steve Odhiambo Orindi, this appeal against conviction and sentence as filed on February 8, 2022 be and is hereby marked as wholly withdrawn.

2. On the question of whether the sentence imposed should run from the date of arrest or date of judgment, section 333(2) of the Criminal Procedure is clear that sentence shall take into account the period a convict has spent in prison custody, unless there was bond granted and the bond terms were breached with abscondment or escape from lawful custody.

3. The trial court record shows that plea was taken on August 13, 2018 after an arrest on August 3, 2018 as per the charge sheet dated August 13, 2018.

4. The accused/now appellant pleaded not guilty to the charge and was granted bond of Kshs 500,000/= plus one surety of similar amount.

5. The hearing commenced in earnest on September 24, 2018 and there is no evidence or record of approval of a surety for the appellant herein. What that means is that the appellant did not raise the surety and therefore he remained in custody until the judgment and sentence were passed.

6. There is no evidence of escape from lawful custody.

7. For the above reasons, I find that the request for consideration of the period spent in prison custody during the trial is merited. That request, if granted is in line with the provisions of article 50(2)(p) of the Constitution which provides that a convicted person is entitled to the benefit of a least severe of the prescribed punishments for an offence.

8. Accordingly, I order that the 15 years’ imprisonment imposed on the appellant herein Steve Odhiambo Orindi for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code and 5 years’ imprisonment imposed for the offence of arson contrary to section 332(a) of the Penal Code to run concurrently shall be calculated from the date of arrest of the appellant Steve Odhiambo Orindi, on August 3, 2018 as per the charge sheet dated August 13, 2018.

9. This ruling and order to be typed, extracted and submitted to Kisumu Maximum Prison for further necessary action.

10. This file is now closed.

11. Orders accordingly.

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