[2023] KEHC 26 (KLR)
The High Court held that the trial court erred in imposing a default sentence of 2 years imprisonment for failure to pay a fine of Kshs 300,000, as there is no statutory provision authorizing such a default term. In the absence of a specific provision, section 28(2) of the Penal Code applies, which limits the...
Source-derived case information.
- Citation
- [2023] KEHC 26 (KLR)
- Parties
- Applicant: Fedilu Bergicho; Applicant: Abenzer Tumdolo; Applicant: Mamush Wolde; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Revision Case E166 of 2022
- Procedural Posture
- Criminal Revision / Ruling on Sentence Revision
- Outcome
- sentence revised; applicants to be released and repatriated
- Judges
- EM Muriithi
- Legal Topics
- Sentencing Principles, Immigration Offences, Default Sentences, Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Fedilu Bergicho
Applicant
Abenzer Tumdolo
Applicant
Mamush Wolde
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Revision
Legal Issues
- 1 Whether the default sentence of 2 years imprisonment for failure to pay a fine of Kshs 300,000 was lawful under the applicable statutes.
- 2 Whether the trial court's sentence was in accordance with the Kenya Citizenship and Immigration Act and the Penal Code.
Ratio Decidendi
The High Court held that the trial court erred in imposing a default sentence of 2 years imprisonment for failure to pay a fine of Kshs 300,000, as there is no statutory provision authorizing such a default term. In the absence of a specific provision, section 28(2) of the Penal Code applies, which limits the default sentence to 12 months for fines exceeding Kshs 50,000. The sentence of 2 years in default was therefore illegal and was substituted with a lawful default sentence of 12 months. As the applicants had already served 12 months in custody, the court ordered their immediate release and repatriation to Ethiopia.
Court Disposition
sentence revised; applicants to be released and repatriated
Orders
- The default sentence of 2 years imprisonment is set aside and substituted with a default sentence of 12 months imprisonment for failure to pay the fine of Kshs 300,000.
- As the applicants have served 12 months, they are to be released immediately from custody.
Full Case Text
Judgment text and source record
27 paragraphs
Bergicho & 2 others v Republic (Revision Case E166 of 2022) [2023] KEHC 26 (KLR) (9 January 2023) (Ruling)
Neutral citation: [2023] KEHC 26 (KLR)
Republic of Kenya
In the High Court at Meru
Revision Case E166 of 2022
EM Muriithi, J
January 9, 2023
Between
Fedilu Bergicho
1st Applicant
Abenzer Tumdolo
2nd Applicant
Mamush Wolde
3rd Applicant
and
Republic
Prosecutor
Ruling
1. The 3 accused persons were convicted on their own plea of guilty for the offence of being unlawfully present in Kenya contrary to section 53 (i) (j) as read with section 53(2) of Kenya Citizenship and Immigration Act 2011.
2. In sentencing the accused the trial court said:“I have considered the 1st, 2nd and 3rd accused’s mitigation. They are first offenders. They were arrested within Kenya being Ethiopian citizens without any permit. For reasons of security and order, the offence committed is indeed serious. Each accused is fined Kshs 300,000 and in default each to serve 2 years imprisonment.L Mutai- CMJanuary 12, 2022”
3. In opposing revision of the sentence, the DPP urged that it had not been demonstrated that the trial magistrate committed any illegality/impropriety or mistake in sentencing the applicants because of “the sentence provided for the offence of being illegally present in Kenya contrary to section 53 (i) (j) as read with section 53(2) of the Kenya Citizenship and Immigration Act, 2011 [is that] they shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding three years, or both.”
4. With respect, the sentence of the trial court on the fine of Kshs 300,000 was proper. The court could also have further imposed a sentence of imprisonment for upto three years or to both. If the court wished to impose a sentence of appropriate of 2 years in addition to the fine it could have done so properly.
5. What was not proper is the provision for the default sentence of 2 years. There is no provision that upon default of payment of a fine, an offender shall serve imprisonment for 2 years. In the absence of such provision, section 28(2) of the Penal Code applies providing that an amount exceeding Kshs 50,000 attracts a default sentence of imprisonment for 12 months.
6. Accordingly, the sentence of 2 years imprisonment in default of payment of the fine of Kshs 300,000 is illegal.
Orders 7. For the reasons set out above, the court in exercise its powers of revision under section 364 of the Criminal Procedure Code substitutes a sentence of 12 months as a default sentence for failure to pay the fine of Kshs 300,000 passed by the trial court.
8. As the accused persons have been in custody since January 12, 2022 when they were sentenced and they have, therefore, fully served default sentence of imprisonment for 12 months, there shall be an order for the immediate release of each of them from custody and for reparation to Ethiopia upon such release.Order accordingly
DATED AND DELIVERED 9THJANUARY, 2023. EDWARD M. MURIITHIJUDGEAppearancesApplicants in personMr. Masila Principal Prosecution Counsel for DPP