[2016] KEHC 166 (KLR)
The trial court imposed a sentence of 1 year imprisonment for the offence of creating a disturbance likely to cause a breach of the peace, contrary to Section 95(1)(b) of the Penal Code. However, the law provides a maximum sentence of six months for this offence. The High Court found that the sentence was unlawful...
Source-derived case information.
- Citation
- [2016] KEHC 166 (KLR)
- Parties
- Applicant: Clement Mboya Mboya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 113 of 2016
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- sentence revised and substituted
- Judges
- DO Ohungo
- Legal Topics
- Sentencing Illegality, Revision of Sentence, Breach of Peace, Penal Code Section 95
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clement Mboya Mboya
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the sentence imposed by the trial court exceeded the maximum allowed by law under Section 95(1)(b) of the Penal Code.
- 2 Whether the sentence should be revised to conform with the statutory maximum.
Ratio Decidendi
The trial court imposed a sentence of 1 year imprisonment for the offence of creating a disturbance likely to cause a breach of the peace, contrary to Section 95(1)(b) of the Penal Code. However, the law provides a maximum sentence of six months for this offence. The High Court found that the sentence was unlawful as it exceeded the statutory maximum. Exercising its revisionary jurisdiction, the High Court set aside the unlawful sentence and substituted it with the lawful sentence of six months imprisonment. The right of appeal was ordered to run from the date of this revision.
Court Disposition
sentence revised and substituted
Orders
- The sentence of 1 year imprisonment imposed by the trial court is set aside.
- The applicant is sentenced to 6 months imprisonment as provided by law.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
CRIMINAL REVISION NO. 113 OF 2016
BETWEEN
CLEMENT MBOYA MBOYA......................................................APPLICANT
AND
REPUBLIC..............................................................................RESPONDENT
(From original conviction and sentence in SRM’s Court Oyugis Cr. C. No.252 of 2016)
RULING
1. CLEMENT MBOYA MBOYA was convicted on a charge of creating a disturbance in a manner likely to cause a breach of the peace contrary to Section 95 (1) (b)k of the Penal Code and sentenced to serve 1 year imprisonment by S.M. Mokua (Chief Magistrate Oyugis Law Courts).
2. Subsequently he forwarded this file for revision vide a letter dated 28th November 2016 with the remarks:-
“It has come to my knowledge that the sentence imposed herein is unlawful.”
Section 95 (1) (b)of the Penal Code provides:-
“Any person who brawls or in any other manner creates a disturbance in such a manner as is likely to cause a breach of the peace, is guilty of a misdemeanour and is liable to imprisonment for six months.”
3. I need not say more – the sentence meted by the trial court was in excess of the legally provided sentence, therefore unlawful.
4. The same be and is hereby set aside. I revise and substitute it with the lawfully provided sentence of 6 months imprisonment.
5. The applicable 14 days right of appeal now runs from the date of this revision. This order be served on the officer in charge at the prison where the inmate is currently held.
Dated this 1st day of December, 2016 at Homa Bay
H.A. OMONDI
JUDGE