[2021] KEHC 1163 (KLR)
The High Court found that the sentence imposed by the lower court was lawful, proper, and regular, and thus not subject to revision under section 362 of the Criminal Procedure Code. However, the order that compensation should take precedence over the fine and custodial sentence was found to be irregular and...
Source-derived case information.
- Citation
- [2021] KEHC 1163 (KLR)
- Parties
- Applicant: Charles Waithaka Karaba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E358 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Sentence
- Outcome
- Order for compensation to take precedence is quashed; all other aspects of sentence remain unless appealed.
- Judges
- GL Nzioka
- Legal Topics
- Sentence Review, Compensation Orders, Default Sentences, Criminal Appeals, Remand Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Waithaka Karaba
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the period spent in remand should have been considered in sentencing the applicant.
- 2 Whether the order for compensation taking precedence over fine and custodial sentence was proper and lawful.
- 3 Whether the High Court can revise the sentence or compensation order in the circumstances presented.
Ratio Decidendi
The High Court found that the sentence imposed by the lower court was lawful, proper, and regular, and thus not subject to revision under section 362 of the Criminal Procedure Code. However, the order that compensation should take precedence over the fine and custodial sentence was found to be irregular and improper, as the trial court did not specify the statutory basis for the compensation order or clarify the consequences of non-payment. The court held that compensation ordered in criminal proceedings, if not paid, is recoverable as a civil debt, and the complainant must pursue it through civil process. The High Court quashed the condition that compensation should take precedence,...
Court Disposition
Order for compensation to take precedence is quashed; all other aspects of sentence remain unless appealed.
Orders
- The condition that compensation should take precedence over fine and custodial sentence is quashed.
- All other issues on sentence can only be canvassed via appeal.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
HIGH COURT MISC CRIMINAL APPL. E358 OF 2021
CHARLES WAITHAKA KARABA.................................................................APPLICANT
VERSUS
REPUBLIC.....................................................................................................RESPONDENT
RULING
1. On 9th March 2021, the applicant was arraigned in court at the Chief Magistrate’s Court at Makadara Law Courts, charged vide Criminal Case No. 658 of 2021, with the offence of; stealing contrary to section; 268(1) as read together with section; 275 of the Penal Code.
2. The particulars of the charge are that, on 3rd March 2021, at Kamukunji Trading Center Nairobi County, he stole a mobile phone, IPhone 11, Pro Max 256 GB, valued at Kshs148,720, the property of Josephine Wangechu Ndungu. He pleaded guilty to the charges. The Court then sentenced the applicant as follows:
a) To pay a fine of Kshs 100,000 in default to serve twelve (12) months imprisonment;
b) To compensate the complainant to the tune of Kshs 148,720.
c) Compensation to take effect precedence.
3. The applicant now seeks for review of the sentence under section 333(2) of the Criminal Procedure Code. He avers that, he was in remand for a period of six (6) months which was not considered when the sentence was passed. That, he suffers from Arthritis and prolonged staying prison will lead to irreversible deterioration. Further, he is a father of four (4) children who solely depend on him. Similarly, his parents depend on him.
4. However, the Respondent opposed the application and argued that, the sentence meted out is legal, and proper. Therefore, the Court should not interfere with it. That, as regards the order for compensation, the same should have been pursued in a civil court or proceedings.
5. I have considered the application and I find that, the applicant having pleaded guilty, the matter herein relates to sentence alone. The circumstances under which the Court can deal with sentence meted by the lower court is under an appeal pursuant to; section 347 of the Penal Code, or revision, under Section 362 of Criminal Procedure Code.
6. As regards the appeal, I find that, none has been preferred herein. As regards revision, I find that, section 362 of Criminal Procedure Code, applies where the sentence in question is improper, incorrect or irregular. In the instant matter, the sentence is prima facie correct, lawful, proper and regular. What seems to be in issue is the order for compensation, which the trial Court stated, it should take precedence over the fine and default custodial sentence.
7. It follows from that order that, the applicant should not have been allowed to serve the custodial sentence, before compensating the complainant, and/or paying the fine. As it were, the applicant has not paid the fine and is already serving the custodial sentence. What will happen when he fully serves the custodial default sentence? That brings in the second issue in question. What will happen if at all he does not pay the compensation? It is clear from the lower Court file that; the Court did not indicate what should happen if the applicant fails to pay the compensation. Should he be released or not? To that extent, I find the order for compensation unclear, and/or uncertain.
8. It suffices to note that, the trial Court did not Indicate the Provisions under which the order for compensation was made. If it was made pursuant to Section 175 of Criminal Procedure Code, then, it is not clear whether the Kshs148,720 was independent of the fine payable.
9. I find that, whatever the case may be, the High Court can only deal with an order made under section 175 of Criminal Procedure Code, if it is appealed against. Further, it is clear that, if the applicant fails to pay the amount ordered as compensation, the complainant can only recover it through a civil process, as it is deemed to be a civil debt as per section 175 (6) of Criminal Procedure Code. Therefore, to the extent that the trial Court ordered that, the compensation should take precedence, that condition in my considered opinion, is irregular and improper and I quash it accordingly. All other issues on sentence can only be canvassed vide an appeal.
It is so ordered.
DATED DELIVERED VIRTUALLY AND SIGNED ON THIS 15TH DAY OF DECEMBER 2021.
GRACE L. NZIOKA
JUDGE
In the presence of:
Applicant present in person
Mr Kiragu for the Respondent
Edwin Ombuna – Court Assistant