[2020] KEHC 1293 (KLR)

[2020] KEHC 1293 (KLR)

The court found that although the trial magistrate acknowledged the period the petitioner spent in custody, he failed to specifically calculate and deduct the actual period from the custodial sentence as required by Section 333(2) of the Criminal Procedure Code. Furthermore, the default custodial sentence of five years imposed for non-payment of a KShs.150,000 fine exceeded the statutory maximum of twelve months prescribed by Section 28(2) of the Penal Code. These failures amounted to violations of the petitioner's constitutional rights to equal protection and fair trial under Articles 27(1) and 50(2) of the Constitution. The court therefore set aside the original sentence, substituted it...

Citation
[2020] KEHC 1293 (KLR)
Parties
Applicant: Eliphas Gitonga Baari; Respondent: Director of Public Prosecutions
Court
High Court
Court Station
High Court at Embu
Jurisdiction
Kenya
Judgment Date
26 November 2020
Case Number
Petition 43 of 2020
Procedural Posture
Constitutional Petition / Judgment
Outcome
petition_allowed
Judges
CW Githua, LM Njuguna
Legal Topics
Sentencing Procedure, Pre Sentence Custody, Right to Fair Trial, Equal Protection of Law
Source Language
English
Criminal Law Constitutional Law Sentencing Procedure Pre Sentence Custody Right to Fair Trial Equal Protection of Law

Case Brief

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Parties

Eliphas Gitonga Baari

Applicant

Director of Public Prosecutions

Respondent

Procedural Posture

Constitutional Petition / Judgment

Legal Issues

  1. 1 Whether the trial court failed to comply with Section 333(2) of the Criminal Procedure Code by not deducting pre-sentence custody from the applicant's sentence.
  2. 2 Whether the default custodial sentence imposed exceeded the statutory maximum under Section 28(2) of the Penal Code.
  3. 3 Whether the applicant's constitutional rights under Articles 27(1) and 50(2) of the Constitution were violated.

Ratio Decidendi

The court found that although the trial magistrate acknowledged the period the petitioner spent in custody, he failed to specifically calculate and deduct the actual period from the custodial sentence as required by Section 333(2) of the Criminal Procedure Code. Furthermore, the default custodial sentence of five years imposed for non-payment of a KShs.150,000 fine exceeded the statutory maximum of twelve months prescribed by Section 28(2) of the Penal Code. These failures amounted to violations of the petitioner's constitutional rights to equal protection and fair trial under Articles 27(1) and 50(2) of the Constitution. The court therefore set aside the original sentence, substituted it...

Court Disposition

petition_allowed

Orders

  • The sentence imposed by the trial magistrate is set aside.
  • It is substituted with a sentence of a fine of KShs.150,000 in default to serve 12 months' imprisonment.