(Being an Application for Sentence Review from Sentence in Bondo Principal Magistrates Court SOA Case No. 52 of 2018 Hon. E. N. Wasike, Senior Resident Magistrate, dated 24/4/2019)
The Applicant Caleb Otieno Mwalo, filed an Application by way of a Notice of Motion on 4/8/2023 seeking that the period he spent in custody while awaiting determination of his case, Bondo SOA Case No. 52 of 2018 be considered in his sentence. The prosecution has not made any substantive response to the application of the Applicant.
Section 333 (2) of the Criminal Procedure Code provides that such period spent by an accused person in custody while awaiting determination of his trial be accounted for in the sentence meted, out by the court.
I have considered the record of proceedings of the trial court. It shows that the Applicant was, on 22/9/2018, charged with the offence of Defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. He was convicted of the same and sentenced to serve 30 years imprisonment.
The record show that when given the opportunity to mitigate, the Applicant offered none, simply stating;
“I have no mitigation”
The court noted that though the offence attracted a life sentence, the applicant would be sentenced to serve 30 years imprisonment.
Though the Applicant has not disclosed it, this court has confirmed that Applicant indeed appealed against both the conviction and sentence ie Siaya Criminal Appeal No. 29 of 2019. In the judgment of the court delivered on 27/1/2020, the court held that the proceedings of the trial of the Applicant were totally defective. The court accordingly quashed the conviction of the Appellant and set aside his sentence. The court finally ordered for a re-trial of the Applicant’s case.
The sentence of the Lower Court of 24/4/2019, which forms the basis of the present application for revision was therefore set aside by the High Court by the Judgment delivered on 27/1/2020. This application, seeking revision of the same, therefore is totally incompetent and lacks any merit. I dismiss the same wholly.
Dated, signed and Delivered at Siaya this 11th Day of April, 2024
D.O. OGEMBO
JUDGE
11/4/2024
Court
Ruling read out in Court in presence of Applicant and Ms. Mumu for State.
D.O. OGEMBO
JUDGE
11/4/2024