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Otieno v Republic (Miscellaneous Criminal Application E092 of 2022) [2022] KEHC 14028 (KLR) (11 October 2022) (Ruling)
Neutral citation:
[2022] KEHC 14028 (KLR)
Republic of Kenya
Miscellaneous Criminal Application E092 of 2022
RE Aburili, J
October 11, 2022
Between
Fredrick Onyango Otieno
Applicant
and
Republic
Respondent
(Being an Application arising from Judgment, conviction and sentence in the Principal Magistrate’s court at Ukwala in Criminal Case No. 30 of 2016 by Hon. C.N. Wanyama Resident Magistrate on 28.9.2016 AND in Siaya HCRA No. 134 of 2016 by T.W. Cherere J on 8.4.2019)
Ruling
1.The applicant is a convict in Ukwala PM Cr. 30/2016 and his appeal to this court vide HCRA 134/2016 was dismissed on 8/4/2019 by T.W. Cherere J. He faced the charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offence Act.
2.He has not appealed further. He now seeks in his application filed on 19/8/2022 that this court do consider the period spent in custody prior to sentencing, taking into account the provisions of Section 33(2) of the Criminal Procedure Code and Article 50(2) (p) (q) of the Constitution.
3.I have considered the application. I observe that the applicant was sentenced to serve 20 years imprisonment on 28/9/2016 by Hon. C.N. Wanyama, Resident Magistrate. That was the minimum mandatory sentence.
4.During the trial, the applicant was not on bond. He was arrested on 17/11/2016 as per the charge sheet and he first appeared in court on 17/1/2016. He has been in prison for five years now.
5.I hereby allow the application and order that the 20 years imprisonment shall be calculated from the date of his arrest on 17/1/2016, as required under section 333(2) of the Criminal Procedure Code.
6.I so order.
7.File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 11TH DAY OF OCTOBER, 2022R.E. ABURILIJUDGE
