[2020] KEHC 5674 (KLR)
The court found that the default term of imprisonment of eight months imposed for non-payment of a Kshs.10,000 fine was illegal, as Section 28(2) of the Penal Code limits the default imprisonment to a maximum of three months for such a fine. The court set aside the illegal portion of the sentence and, considering...
Source-derived case information.
- Citation
- [2020] KEHC 5674 (KLR)
- Parties
- Applicant: David Muli Kinyua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 9 of 2020
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- sentence revised; applicant to be released unless otherwise lawfully held
- Legal Topics
- Breach of Curfew Order, Sentencing Illegality, Default Imprisonment Terms
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Muli Kinyua
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the default term of imprisonment imposed for non-payment of fine exceeded the statutory maximum period.
- 2 Whether the sentence should be revised in light of the illegality and prevailing COVID-19 circumstances.
Ratio Decidendi
The court found that the default term of imprisonment of eight months imposed for non-payment of a Kshs.10,000 fine was illegal, as Section 28(2) of the Penal Code limits the default imprisonment to a maximum of three months for such a fine. The court set aside the illegal portion of the sentence and, considering the COVID-19 crisis and the need to decongest prisons, substituted the sentence with a term equivalent to time already served, ordering the applicant's immediate release unless otherwise lawfully held.
Court Disposition
sentence revised; applicant to be released unless otherwise lawfully held
Orders
- The default term of imprisonment of eight months is set aside and substituted with a term equivalent to time already served.
- The applicant shall be set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL REVISION NO.99 OF 2020
DAVID MULI KINYUA......................................................APPLICANT
VERSUS
REPUBLIC......................................................................RESPONDENT
(Revision of the Original Sentence dated 07. 05. 2020 in Nanyuki
Criminal Case No.393 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, DAVID MULI KINYUA, was convicted upon his own plea of Breach of Curfew Order contrary to Order 3 of the Public Order (State Curfew) Order, 2020 as read with Section 8(6) of the Public Order Act, Cap 56.
3. On 07. 05. 2020 the Convict was sentenced to a fine of Kshs.10,000= and in default of payment, to serve eight (8) months imprisonment. He did not pay the fine.
4. The default term of imprisonment of eight (8) months is illegal. It should not exceed three (3) months imprisonment for a fine of Kshs.10,000/00. See Section 28(2) of the Penal Code.
5. In the circumstances, I will set aside that term of imprisonment of six (6) months.
6. Because of the Coronavirus (COVID-19) crisis in our country, and in order to assist in de-congesting the prisons, I shall substitute a term of imprisonment equivalent to the time already served by the Convict.
7. That means that the 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