Owino v Republic [2023] KEHC 25606 (KLR)

Owino v Republic (Miscellaneous Criminal Application E068 of 2023) [2023] KEHC 25606 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25606 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Criminal Application E068 of 2023

RE Aburili, J

November 17, 2023

Between

Pius Oduori Owino

Applicant

and

Republic

Respondent

(From the original conviction and sentence in Senior Principal Magistrate’s Court Criminal Case No. 1442 of 2014 at Maseno)

Ruling

1. The Applicant is a convict vide Maseno Senior Principal Magistrate Criminal Canse No. 1442 of 2014 wherein he was charged, tried and convicted of the offence of Manslaughter contrary to section 202 as read with section 205 of the Penal Code and sentenced to serve ten (10) years imprisonment on April 24, 2018.

2. Initially, the Applicant faced the charge of Murder which was reduced to Manslaughter. In addition, the convict herein had pleaded guilty to the charge when he appeared in court for plea but the plea of guilty which saw him being handed thirty (30) years imprisonment was set aside by the High Court on appeal as the same was found to have been an equivocal plea hence the convict was ordered to be retried afresh. That explains the delay in determining the case before the trial court, from 2014.

3. The Applicant/Convict has annexed copies of proceedings in Maseno SPM Criminal Case No. 1142 of 2014 and Judgment therein which shows that he was in custody all along from date of his arrest on November 9, 2014 until his conviction on 24th April 2018, which was a period of three (3) years and seven (7) months, although he claims that from November 9, 2014 to 24th April 2018 is 2 years and 4 months.

4. In his mitigation, the convict requested that the period he spent in custody be considered but the trial court did not consider that period hence this application which comes after his appeal vide HCCRA No. 82 of 2015 was dismissed and Misc. Criminal Application No. E097 of 021 was dismissed too.

5. As there is no evidence that the convict/applicant was ever released on bond during the trial in the lower court, I hereby invoke the provisions of section 333(2) of the Criminal Procedure Code and order that the ten (10) years imprisonment imposed on the applicant herein Puis Oduori Owino shall be calculated from November 9, 2014 when he was arrested and held in custody.

6. I so order.

7. This file is now closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 17TH DAY OF NOVEMBER, 2023. R. E. ABURILIJUDGE