[2020] KEHC 6896 (KLR)

[2020] KEHC 6896 (KLR)

The trial court imposed a default custodial sentence of three years imprisonment for non-payment of a fine of Kshs. 200,000 for the offence of performing female genital mutilation. Section 28(2) of the Penal Code limits the default custodial sentence for non-payment of a fine to a maximum of twelve months. The...

Source-derived case information.

Citation
[2020] KEHC 6896 (KLR)
Parties
Applicant: Awina Leseri; Respondent: Republic
Court
High Court
Court Station
High Court at Nanyuki
Jurisdiction
Kenya
Case Number
Criminal Revision 87A of 2020
Procedural Posture
Criminal Revision / Order on Revision
Outcome
Default custodial sentence set aside and substituted with twelve months imprisonment from 16.12.19.
Legal Topics
Sentencing Illegality, Female Genital Mutilation, Penal Code Section 28, Prohibition of Fgm Act
Source Language
en
Criminal Law Sentencing Illegality Female Genital Mutilation Penal Code Section 28 Prohibition of Fgm Act

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Summary, issues, holding and outcome

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Parties

Awina Leseri

Applicant

Republic

Respondent

Procedural Posture

Criminal Revision / Order on Revision

Legal Issues

  1. 1 Whether the default custodial sentence imposed for non-payment of fine exceeded the statutory maximum under Section 28(2) of the Penal Code.
  2. 2 Whether the sentence should be revised to comply with the law.

Ratio Decidendi

The trial court imposed a default custodial sentence of three years imprisonment for non-payment of a fine of Kshs. 200,000 for the offence of performing female genital mutilation. Section 28(2) of the Penal Code limits the default custodial sentence for non-payment of a fine to a maximum of twelve months. The sentence imposed by the trial court exceeded this statutory maximum and was therefore illegal. The High Court, exercising its revisionary jurisdiction, set aside the illegal sentence and substituted it with a lawful default sentence of twelve months imprisonment from the date of the original sentence.

Court Disposition

Default custodial sentence set aside and substituted with twelve months imprisonment from 16.12.19.

Orders

  • The default sentence of three years imprisonment is set aside.
  • A term of twelve months imprisonment from 16.12.19 is substituted as the default sentence.