Ouma v Republic [2024] KEHC 11710 (KLR)

Ouma v Republic (Criminal Appeal E017 of 2024) [2024] KEHC 11710 (KLR) (1 October 2024) (Judgment)

Neutral citation: [2024] KEHC 11710 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal E017 of 2024

KW Kiarie, J

October 1, 2024

Between

Felix Omondi Ouma

Appellant

and

Republic

Respondent

(From the original conviction and sentence in Criminal Case No. E404 of 2022 of the Chief Magistrate’s Court at Homa Bay by Hon. J.M Nang’ea– Chief Magistrate)

Judgment

1. Felix Omondi Ouma, the appellant herein, was convicted of stealing stock contrary to section 278 of the Penal Code.

2. The particulars of the offence were that on the 25th day of October 2022, in Orege village, Genga sublocation in Rangwe Sub County of Homa Bay County, jointly with another stole a brown cow, valued at Kshs.12,000/= the property of Richard Okello.

3. The appellant was sentenced to serve eighteen months imprisonment. He has appealed against the sentence.

4. The appellant was in person. He contended that the trial magistrate did not include the period I was in remand custody from 1st October 2023 to 11th October 2024 as part of the served portion of the sentence under article 333(2) of the CPC.

5. The state opposed the appeal for lack of merits.

6. This is a first appellate court. As expected, I have analyzed and evaluated all the evidence before the lower court afresh and drawn my conclusions, bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.

7. Section 333(2) of the Penal Code provides:Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

8. The appellant was arrested on September 31, 2022, and remained in custody until the case was concluded. His sentence ought to run from that date. His appeal is, therefore, allowed.

DELIVERED AND SIGNED AT HOMA BAY THIS 1STDAY OF OCTOBER 2024KIARIE WAWERU KIARIEJUDGE