REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
(CORAM: R.K. KOECH, J.)
CRIMINAL CASE NO. E031 OF 2024
ABDULAZIZ LOYARA ALI……………………………APPLICANT
VERSUS
REPUBLIC……………………………………….RESPONDENT
RULING
1. Vide an undated chamber summons uploaded through the court tracking system the applicant is seeking orders to have the period he spent in custody taken into consideration in computation of his sentence. The application is supported by the applicant’s affidavit, similarly undated and uploaded alongside the application. The applicant avers that he was charged and convicted for the offence of defilement and sentenced to serve imprisonment for a period of twenty (20) years.
2. The applicant contends that he spent one year and two months in remand prior to his conviction and sentence, which he wants the court to take into consideration in computation of his sentence. The applicant has invoked the provisions of S. 333(2) of the Criminal Procedure Code as the basis for his application.
3. It provides, “subject to the provisions of section 38 of the Penal Code 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.”
4. The applicant appealed against his conviction and sentence vide Bungoma High Court CRA No. 69 of 2013, in a judgment delivered on 30 th March, 2017 Hon. Lady Justice Ali-Aroni, Judge, as she then was dismissed the applicant’s appeal and upheld both his conviction and sentence.
5. On 12 th March, 2024 the applicant filed an application, similar to the instant application which was heard by Hon. Lady Justice Rose E. Ougo. In a ruling delivered on 4 th June, 2024 the applicant’s application was dismissed. The Judge held, and I quote, “The applicant was convicted and sentenced on 8.5.2013. He appealed to the High Court and in a judgment dated 30.3.2017 Justice Ali-Aroni, as she then was, upheld the conviction and sentence meted by the lower court. This is a court of equal jurisdiction as the court that heard the applicant’s appeal. I agree with the respondent that I would be revisiting the decision of a court of equal jurisdiction. I lack the jurisdiction to do so. The applicant can pursue the orders sought in the Court of Appeal. I therefore find no merit in the application and I dismiss it. File is closed.”
6. Instead of pursuing an appeal before the Court of Appeal against either the decisions of Justices Ali-Aroni or Rose E. Ougo, the applicant took a lull of some two(2) years and about four(4) months and lodged an application similar to the one dismissed by Hon. Lady Justice Rose E. Ougo.
7. The application is similarly found to be devoid of merit even if it has not been opposed by the state. I have noted that this application is similar to several other applications where convicts upload, with the help of prison authorities, applications similar to previous applications, already adjudicated by courts. The effect is to clog the system and crowd out merited new applications whose litigants are queuing for hearing.
8. In the circumstances, I do dismiss the applicant’s application as being duplicitous and res-judicator.
Orders accordingly.
Ruling read, dated, signed and delivered in the open court this 23 rd day of July, 2026.
___________________
R. K. Koech
JUDGE
In the presence of;
Ms. Mulwa appearing for the State
The applicant appearing in person
Roselyne & Enock, Court assistance.
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IN THE HIGH COURT OF KENYA AT BUNGOMA
(CORAM: R.K. KOECH, J.)
CRIMINAL CASE NO. E031 OF 2024
ABDULAZIZ LOYARA ALI……………………………APPLICANT
VERSUS
REPUBLIC……………………………………….RESPONDENT
RULING
1. Vide an undated chamber summons uploaded through the court tracking system the applicant is seeking orders to have the period he spent in custody taken into consideration in computation of his sentence. The application is supported by the applicant’s affidavit, similarly undated and uploaded alongside the application. The applicant avers that he was charged and convicted for the offence of defilement and sentenced to serve imprisonment for a period of twenty (20) years.
2. The applicant contends that he spent one year and two months in remand prior to his conviction and sentence, which he wants the court to take into consideration in computation of his sentence. The applicant has invoked the provisions of S. 333(2) of the Criminal Procedure Code as the basis for his application.
3. It provides, “subject to the provisions of section 38 of the Penal Code 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.”
4. The applicant appealed against his conviction and sentence vide Bungoma High Court CRA No. 69 of 2013, in a judgment delivered on 30 th March, 2017 Hon. Lady Justice Ali-Aroni, Judge, as she then was dismissed the applicant’s appeal and upheld both his conviction and sentence.
5. On 12 th March, 2024 the applicant filed an application, similar to the instant application which was heard by Hon. Lady Justice Rose E. Ougo. In a ruling delivered on 4 th June, 2024 the applicant’s application was dismissed. The Judge held, and I quote, “The applicant was convicted and sentenced on 8.5.2013. He appealed to the High Court and in a judgment dated 30.3.2017 Justice Ali-Aroni, as she then was, upheld the conviction and sentence meted by the lower court. This is a court of equal jurisdiction as the court that heard the applicant’s appeal. I agree with the respondent that I would be revisiting the decision of a court of equal jurisdiction. I lack the jurisdiction to do so. The applicant can pursue the orders sought in the Court of Appeal. I therefore find no merit in the application and I dismiss it. File is closed.”
6. Instead of pursuing an appeal before the Court of Appeal against either the decisions of Justices Ali-Aroni or Rose E. Ougo, the applicant took a lull of some two(2) years and about four(4) months and lodged an application similar to the one dismissed by Hon. Lady Justice Rose E. Ougo.
7. The application is similarly found to be devoid of merit even if it has not been opposed by the state. I have noted that this application is similar to several other applications where convicts upload, with the help of prison authorities, applications similar to previous applications, already adjudicated by courts. The effect is to clog the system and crowd out merited new applications whose litigants are queuing for hearing.
8. In the circumstances, I do dismiss the applicant’s application as being duplicitous and res-judicator.
Orders accordingly.
Ruling read, dated, signed and delivered in the open court this 23 rd day of July, 2026.
___________________
R. K. Koech
JUDGE
In the presence of;
Ms. Mulwa appearing for the State
The applicant appearing in person
Roselyne & Enock, Court assistance.
Page 4 of 4