[2020] KEHC 5637 (KLR)
The court found that the default sentence of six months imprisonment imposed by the trial court for non-payment of a fine was illegal, as Section 28(2) of the Penal Code limits such default sentences to a maximum of three months. In light of this illegality and the prevailing COVID-19 crisis, the court set aside the...
Source-derived case information.
- Citation
- [2020] KEHC 5637 (KLR)
- Parties
- Applicant: Elijah Mwangi Ireri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 102 of 2020
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- Application for revision allowed. Default sentence set aside and substituted with time served. Applicant to be released unless otherwise lawfully held.
- Legal Topics
- Sentencing Illegality, Curfew Offences, Public Order Act, Default Sentence, Covid19 Related Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Mwangi Ireri
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the default sentence of six months imprisonment imposed for non-payment of fine was lawful under the Penal Code.
- 2 Whether the sentence should be revised in light of statutory limits and the COVID-19 context.
Ratio Decidendi
The court found that the default sentence of six months imprisonment imposed by the trial court for non-payment of a fine was illegal, as Section 28(2) of the Penal Code limits such default sentences to a maximum of three months. In light of this illegality and the prevailing COVID-19 crisis, the court set aside the six-month sentence and substituted it with a sentence equivalent to the time already served by the convict. The court ordered the immediate release of the applicant unless otherwise lawfully held, emphasizing both statutory compliance and the need to decongest prisons during the pandemic.
Court Disposition
Application for revision allowed. Default sentence set aside and substituted with time served. Applicant to be released unless otherwise lawfully held.
Orders
- The default sentence of six months imprisonment is set aside.
- The default sentence is substituted with time already served by the convict.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL REVISION NO.102 OF 2020
ELIJAH MWANGI IRERI...............APPLICANT
VERSUS
REPUBLIC.....................................RESPONDENT
(Revision of the Original Sentence dated 06. 05. 2020 in Nanyuki Criminal Case No.365 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, ELIJAH MWANGI IRERI, pleaded guilty to and was convicted of the offence of Breach of Curfew OrderMcontrary 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 06. 05. 2020 the Convict was sentenced to a fine of Kshs.10,000= and in default of payment, to serve six (6) months imprisonment. He did not pay the fine.
4. The default sentence is patently illegal. Under Section 28(2) of the Penal Code it should not exceed imprisonment for three (3) months.
5. In the circumstances, that default sentence of six months imprisonment is hereby set aside.
6. Because of the Coronavirus (COVID-19) crisis in our country, and in order to help in de-congesting prisons, I will substitute a default sentence of 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