[2003] KEHC 246 (KLR)
The trial magistrate imposed default imprisonment sentences of two years for counts one and two, which exceeded the statutory maximum of 12 months as stipulated by section 28(2) of the Penal Code for the fines imposed. The High Court found these sentences to be illegal and reduced them to 12 months each. Since the...
Source-derived case information.
- Citation
- [2003] KEHC 246 (KLR)
- Parties
- Appellant: Charles Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1320 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal on sentence allowed; sentences varied; appellant released
- Legal Topics
- Sentencing Principles, Default of Fine, Illegal Sentence, Penal Code Section 28 2
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Onyango
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the default imprisonment sentences imposed by the trial magistrate exceeded the statutory maximum under section 28(2) of the Penal Code.
- 2 Whether the appellant is entitled to a reduction of the default imprisonment sentences to conform with the law.
Ratio Decidendi
The trial magistrate imposed default imprisonment sentences of two years for counts one and two, which exceeded the statutory maximum of 12 months as stipulated by section 28(2) of the Penal Code for the fines imposed. The High Court found these sentences to be illegal and reduced them to 12 months each. Since the sentences were to run concurrently, and considering remission, the appellant had already served more than the required period. The court therefore ordered his immediate release unless otherwise lawfully held.
Court Disposition
appeal on sentence allowed; sentences varied; appellant released
Orders
- The default imprisonment sentences for counts one and two are reduced to 12 months each.
- All sentences to run concurrently from the date of original sentencing (5.5.2002).
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI HIGH COURT CRIMINAL APPEAL NO. 1320 OF 2002
(From original conviction and sentence in criminal case number 3497 of 2000 of the Senior Principal Magistrate’s Court at Kibera)
CHARLES ONYANGO ………………………………….. APPELLANT
VERSUS
REPUBLIC ……………………………………………… RESPONDENT
JUDGMENT
The appellant was charged with three counts of causing actual bodily harm contrary to section 251 of the Penal Code. He was sentenced to a fine of 40,000/- in counts one and two and in default he would serve imprisonment for 2 years in respect of each count. In respect to the third count, he was given a fine of Kshs.20,000/- and in default he would serve imprisonment for a period of 12 months. He appealed against both the conviction and sentence. When he was given the opportunity to argue his appeal, he decided to drop the appeal on the conviction and wanted to argue the appeal on sentence only.
That is when the State Counsel, Mr. Monda, indicated that the cannot support the sentence on count one and two in relation to the period of imprisonment to be served in view of the provisions of section 28(2) of the Penal Code.
I have examined the record and the said section 28(2) of the Penal Code. I note that the proper imprisonment sentence which the trial magistrate should have imposed in respect of each of the three counts is 12 months if there would be a default in payment of the fines he imposed of Kshs.40,000/- in respect to counts one and two and 20,000/- in respect of count three. The trial magistrate therefore imposed illegal sentence of two years in respect to counts one and two. This is what Mr. Monda pointed out and invited the court to interfere with. I am in full agreement with the views of Mr. Monda. I will therefore reduce the prison sentences to counts one and two to 12 months respectively.
Since the three sentences were concurrent, the appellant would under the circumstances serve one current period of 12 months in respect of all the three counts from the date of sentencing, which is 5. 5.2002. This means that he has served a period of 9 months and 7 days. Considering that he was to be considered for remission of a third of the full sentence of 12 months, he should have served only 8 months and be available for remission.
It is the order of the court therefore that the appellant be forthwith released from prison unless lawfully held there. It is so ordered.
Dated and delivered at Nairobi on the 13th February 2003
D.A. ONYANCHA
JUDGE.