[2015] KEHC 424 (KLR)
The trial court imposed a default sentence of 3 years imprisonment for each count in lieu of a fine of Kshs 20,000/-, which is not authorized by section 28 of the Penal Code. The law provides that for fines between Kshs 15,000 and Kshs 50,000, the default imprisonment should not exceed 6 months. The High Court found...
Source-derived case information.
- Citation
- [2015] KEHC 424 (KLR)
- Parties
- Appellant: Benson Nyaga Nderi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 41 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Legal Topics
- Housebreaking, Stealing, Malicious Damage to Property, Sentencing Principles, Plea of Guilty, Default Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Nyaga Nderi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was authorized by law.
- 2 Whether the default sentence of imprisonment in lieu of fine was correct under section 28 of the Penal Code.
- 3 Whether the plea of guilty and mitigation were properly considered.
Ratio Decidendi
The trial court imposed a default sentence of 3 years imprisonment for each count in lieu of a fine of Kshs 20,000/-, which is not authorized by section 28 of the Penal Code. The law provides that for fines between Kshs 15,000 and Kshs 50,000, the default imprisonment should not exceed 6 months. The High Court found that the convictions were sound as the appellant pleaded guilty and the proceedings were proper. However, the sentence was unlawful to the extent of the default imprisonment term. The High Court therefore set aside the 3-year default sentence and substituted it with a 6-month default sentence for each count, in accordance with the law.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of 3 years imprisonment in default of fine is set aside and substituted with 6 months imprisonment in default for each count.
- The convictions are upheld.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL APPEAL NO. 41 OF 2015
BENSON NYAGA NDERI...................................….......……......……..APPELLANT
VERSUS
REPUBLIC……………………….......................……………………..RESPONDENT
(Being an appeal from the original conviction and sentence in CR 312 of 2015 at Siakago Senior Principal Magistrate's Court by Hon J. Omwange - RM on 11th May, 2015)
JUDGEMENT
This is an appeal against a sentence of a fine of Kshs 20,000/- in default 3 years imprisonment imposed by the Court of the Resident Magistrate at Siakago on 11th May, 2015. The appellant had pleaded guilty to a composite charge of housebreaking contrary to section 304 (1) (b) and stealing contrary to section 279 (b) in count I, both of the Penal Code (Cap 63 Laws of Kenya). In count II, he also pleaded guilty to the offence of malicious damage to property contrary to section 339 (1) of the Penal Code. In count I, the appellant stole property worth Kshs 9,000/- whereas in count II, he damaged a thermos flask valued at Kshs 300/-
In sentencing the appellant, the trial court considered his mitigation before sentencing him to a fine of Kshs 20,000/- in default to serve 3 years imprisonment for each count.
This is a first appeal. As a first appeal court, I have reassessed the plea of guilty proceedings and I am satisfied that the convictions are sound.
As regards the sentence, I find that the stolen properties were recovered and were subsequently produced in court as exhibits. I also take into account that the appellant was a first offender in addition to his plea that he was drunk at the time he committed the offence.
However, the sentence imposed by the trial court is not one that is authorized by the law. According to section 28 of the Penal Code, the default sentence of imprisonment where the fine is Kshs 15,000/- but not exceeding Kshs 50,000/-, is 6 months imprisonment. It therefore follows that in this case, the default sentence should have been 6 months imprisonment. And for that reason, I hereby set aside the sentence imposed and substitute in its place a default sentence of 6 months imprisonment.
The appellant's appeal is allowed to the extent that he is to serve 6 months imprisonment in default of the fines that were imposed.
JUDGEMENT DATED, SIGNEDand DELIVERED in open court at EMBU this 18th day of NOVEMBER, .2015
In the presence of the applicant and counsel for the respondent.
Court clerk Nyaga
J. M. BWONWONGA
JUDGE
18. 11. 15.