[2020] KEHC 5557 (KLR)
The court found that the default custodial sentence of six months imposed for non-payment of a Kshs.10,000 fine was illegal, as Section 28(2) of the Penal Code limits the default term to a maximum of three months for such a fine. The court exercised its revisionary jurisdiction to set aside the illegal sentence....
Source-derived case information.
- Citation
- [2020] KEHC 5557 (KLR)
- Parties
- Applicant: Boniface Munyi Kimaru; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 103 of 2020
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- Default custodial sentence set aside and substituted with time served; applicant to be released unless otherwise lawfully held.
- Legal Topics
- Sentencing Illegality, Curfew Offences, Public Order Violations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Munyi Kimaru
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the default sentence of six months imprisonment for non-payment of a Kshs.10,000 fine was lawful.
- 2 Whether the sentence should be revised in light of statutory provisions and the COVID-19 context.
Ratio Decidendi
The court found that the default custodial sentence of six months imposed for non-payment of a Kshs.10,000 fine was illegal, as Section 28(2) of the Penal Code limits the default term to a maximum of three months for such a fine. The court exercised its revisionary jurisdiction to set aside the illegal sentence. Additionally, considering the ongoing COVID-19 pandemic and the need to decongest prisons, the court substituted the default sentence with the period already served, ordering the applicant's immediate release unless otherwise lawfully held. The decision underscores the court's obligation to ensure sentences comply with statutory provisions and to respond appropriately to public...
Court Disposition
Default custodial sentence set aside and substituted with time served; applicant to be released unless otherwise lawfully held.
Orders
- The default term of imprisonment of six months is set aside.
- The default sentence is substituted with the time already served by the convict.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL REVISION NO.103 OF 2020
BONIFACE MUNYI ………………………....……………………...APPLICANT
VERSUS
REPUBLIC …………………………..………………………........RESPONDENT
(Revision of the Original Sentence dated 06. 05. 2020 in Nanyuki Criminal Case No.358 of 2020 – L. Mutai, CM)
27. 05. 2020
Before Justice H P G Waweru
In Chambers
ORDER ON REVISION
1. Upon request by the Convict herein, I have called for and examined the record of the trial court.
2. The Convict, BONIFACE MUNYI KIMARU, pleaded guilty to and was convicted of the offence ofBreach of Curfew Ordercontrary toOrder 3of thePublic Order(State Curfew) Order, 2020 as read withSection 8(6)of thePublic Order Act, Cap 56.
3. On 06. 05. 2020 the Convict was sentenced to a fine of Kshs.10,000= and in default of payment, to serve six (6) months imprisonment. He did not pay the fine.
4. The default sentence is illegal. UnderSection 28(2)of thePenal Code,the default term of imprisonment should not exceed three (3) monthsfor afine of Kshs.10,000=.
5. In the circumstances, I hereby set aside the default term of imprisonment of six(6) months. .
6. Because of the Coronavirus (COVID-19) crisis in our country, and in order to help in de-congesting our prisons, I hereby substitute a default sentence of the time already served by the convict.
7. That means that t he Convict shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AT NANYUKI THIS 27TH DAY OF MAY, 2020
H.P.G. WAWERU
JUDGE.
DEPUTY REGISTRAR
NANYUKI HIGH COURT