[2018] KEHC 9179 (KLR)
The court found that although the trial magistrate had discretion to impose a fine with a default sentence for theft of a motor vehicle, the default sentence of two years exceeded the statutory maximum of twelve months for fines above Kshs. 50,000 as stipulated in Section 28(2) of the Penal Code. The default...
Source-derived case information.
- Citation
- [2018] KEHC 9179 (KLR)
- Parties
- Appellant: Edwin Musavi Ikatwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 30 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application allowed; sentence revised
- Legal Topics
- Theft of Motor Vehicle, Sentencing Principles, Revision of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Musavi Ikatwa
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the default sentence imposed upon the applicant for theft of a motor vehicle was lawful under the Penal Code.
- 2 Whether the sentence should be revised downward in light of the applicable statutory provisions.
Ratio Decidendi
The court found that although the trial magistrate had discretion to impose a fine with a default sentence for theft of a motor vehicle, the default sentence of two years exceeded the statutory maximum of twelve months for fines above Kshs. 50,000 as stipulated in Section 28(2) of the Penal Code. The default sentence was therefore illegal. The court set aside the original sentence and substituted it with a lawful sentence: a fine of Kshs. 200,000, in default twelve months imprisonment.
Court Disposition
application allowed; sentence revised
Orders
- The sentence imposed by the trial court is set aside.
- The applicant shall pay a fine of Kshs. 200,000, in default serve twelve months imprisonment.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO. 30 OF 2018
EDWIN MUSAVI IKATWA ........................ APPELLANT
VERSUS
REPUBLIC ................................................ RESPONDENT
RULING
This is an application for revision of sentence in which the Applicant was charged with the offence of theft of a motor vehicle contrary to Section 268 as read with Section 278 (A) of the Penal Code. It was alleged that on the 12th day of September, 2013 at Safari Park View Estate in Kasarani within Nairobi County jointly with others not before court, stole motor vehicle Reg. No. KAX 010T Toyota Rav4 white in colour valued at Kshs. 780,000/= a property of Julius Mathenge Waweru.
The Applicant was convicted accordingly. He was sentenced to pay a fine of Kshs. 200,000/= in default, serve two years imprisonment. The sentence was passed on 26th January, 2018.
The Applicant only stated that the sentence should be revised downwards. He added that prior to taking plea, he was in the police custody for four days.
The respondent opposed the application with M/s Akunja submitting that the sentence was sufficient.
Under Section 278(A) of the Penal Code, a person convicted for theft of a motor vehicle is liable to imprisonment for seven (7) years. In the present case, the learned trial magistrate opted for a penalty of a fine with a default sentence. In that case, he ought to have been guided by Section 28(2) of the Penal Code. Under the provision, where the fine exceeds Kshs. 50,000/= the default sentence must not exceed twelve (12) months. No doubt then, the default sentence imposed was illegal.
In sum, the application succeeds with orders that the sentence imposed is set aside. I substitute it with an order that the Applicant shall pay a fine of Kshs. 200,000/= in default serve 12 months imprisonment.
DATED AND DELIVERED THIS 13TH DAY OF MARCH, 2018
G.W. NGENYE-MACHARIA
JUDGE
In the presence of:
1. Applicant in person
2. Miss Sigei for the Respondent