Oyomo v Republic [2022] KEHC 15147 (KLR)

Oyomo v Republic (Miscellaneous Criminal Application E067 of 2021) [2022] KEHC 15147 (KLR) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15147 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Criminal Application E067 of 2021

RE Aburili, J

November 8, 2022

Between

Jack Mbeya Oyomo

Applicant

and

Republic

Respondent

(Application for resentencing in Winam Cr. No. 1441/2014 and in Kisumu HCCRA No. 15 of 2017)

Ruling

1. The applicant herein was convicted and sentenced to serve 20 years imprisonment vide Winam Cr. XXX/2014 following the charge of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act.

2. The conviction and sentence imposed on 28/2/2012 followed the amendment of the charge sheet placing the offence to fall under section 8(1) as read with section 8(4) of the Sexual Offences Act, showing the minor was aged 15 years. The applicant herein denied the offence. He appealed to the High Court vide HCRA XX/2017 which appeal against conviction was dismissed but the appeal against sentence was allowed to the extent that an illegal sentence of 20 years imprisonment had been imposed on him yet the section 8(4) of the Act provides for fifteen years imprisonment. He now claims that he spent 7 years in custody which he wants taken into account.

3. I have perused the original Winam Cr. Case No. 1441/2014. It shows that the applicant/ convict herein was arrested on 6/10/2014.

4. On 5/11/2014, his Surety was approved and on 5/11/2014 the same day, he was released on bond pending trial until the case was heard and determined. His sentence was also reduced by 5 years on appeal.

5. This court does not understand where the 7 years are coming from. The only period that I order to be taken into account is between 6/10/2014, date of arrest and 5/11/2014, date of release on bond hence one month and Not the seven years claimed by the applicant.

6. Accordingly, the application filed on 29/7/2021 is partially allowed to the extent that in computing the 15 years imprisonment imposed on the applicant convict herein, the period between 6/10/2014 and 5/11/2014 shall be taken into account and not the seven years sought.

7. I so order.

8. File closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 8TH DAY OF NOVEMBER, 2022R.E. ABURILIJUDGE