Otukho & 2 others v Republic [2022] KEHC 9788 (KLR)

Otukho & 2 others v Republic (Miscellaneous Criminal Application E056 of 2021) [2022] KEHC 9788 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9788 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Criminal Application E056 of 2021

FA Ochieng, J

July 13, 2022

Between

Julius Ainea Otukho

1st Applicant

Josephat Okwele Muyeyia

2nd Applicant

Phillip Efesta Kenewa

3rd Applicant

and

Republic

Respondent

Ruling

1. On 24th February 2012 the three Applicants, Julius Ainea Otukho, Josephat Okwele Muyeyia And Philip Efesta Kenewa were sentenced to Death, following the conviction for the offence of Robbery with Violence.

2. Based upon the applicability of the judgement rendered by the Supreme Court in the celebrated case of Francis Karioko Muruatetu, the Court did review the sentences to thirty (30) years imprisonment.

3. The Applicants have now asked this court to further review the said sentence.

4. The present application is premised on Section 333 (2) of the Criminal Procedure Code.

5. Each of the Applicants has told the court that they have been well disciplined whilst in prison. They have also undertaken numerous faith-based courses.

6. However, I hold the view that when giving effect to the provisions of Section 333 (2) of the Criminal Procedure Code, the court must limit its consideration to only one factor; the length of time which each convict had spent in prison custody whilst he or she was still on trial.

7. Therefore, the period which the Applicants have spent in prison after conviction cannot be taken into account.

8. From the record of the proceedings, the Applicants spent the period of one Year and Eleven Monthsin custody, whilst they were on trial.

9. In the result, I order that when computing the actual duration which each of the Applicant is to serve the sentence of thirty (30) years imprisonment, the prison authorities will give them credit of one year and eleven months.

DATED, SIGNED AND DELIVERED AT KISUMUThis 13th day of July 2022. FRED A. OCHIENGJUDGE