Case ID:169627

James Abiero Makata & 2 others v Republic [2021] eKLR

Case Metadata

Case Number:

Miscellaneous Criminal Application E021 of 2020

Parties:

James Abiero Makata, David Ongayi Alela & Tom Odhiambo Omware v Republic

Date Delivered:

19 Jan 2021

Case Class:

Criminal

Court:

High Court at Siaya

Case Action:

Ruling

Judge(s):

Roselyne Ekirapa Aburili

Citation:

James Abiero Makata & 2 others v Republic [2021] eKLR

Court Division:

Criminal

County:

Siaya

Case Outcome:

File closed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPULIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

MISCELLEANOUS CRIMINAL APPLICATION NO. E021 OF 2020

JAMES ABIERO MAKATA....................................................................1

ST

APPLICANT

DAVID ONGAYI ALELA........................................................................2

ND

APPLICANT

TOM ODHIAMBO OMWARE................................................................3

RD

APPLICANT

VERSUS

REPUBLIC................................................................................................. RESPONDENT

RULING

1. I have considered the application by the 3 applicants herein James Abiero Makata, David Ongayi Alela and Tom Odhiambo Omware, serving prison term at Siaya G.K. Prison. I note that the Petitioners have exhausted their right of appeal and were resentenced to serve 25 years, 30 years and 20 years imprisonment respectively for the offence of

Robbery with Violence

but the resentencing never took into account the period spend in remand custody contrary to

Section 333(2)

which provides that in sentencing, the trial court should take into account the period spend in remand custody where the accused was not on bond.

2. In this case, the offence of Capital Robbery was not bailable prior to 2010. The trial of the Petitioners took place in 2003, up to 2009 when the appeals were dismissed.

3. Under Article 50(2) (P) of the Constitution, an accused person/convict has a right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been charged between the time that the offence was committed and the time of sentencing ,and to apply for review by a higher court, as prescribed by law.

4. Considering that the term sentences as re-imposed on the petitioners did not take into account the period served in prison remand and as such period would accord the petitioners the benefit of the least served of the prescribed punishment for the offence of Robbery with Violence, I order that the respective prison sentences as imposed on the petitioners herein shall be calculated from the date of arrest of the petitioners before they were tried, taking into account the period they spent in prison custody prior to their convictions and sentences in the trial court.

5. The Petition is therefore allowed to the extend stated above.

6. This file is closed.

7. Orders accordingly.

Dated, Signed and Delivered at Siaya this 19

th

day of January, 2021

R.E. ABURILI

JUDGE