[2006] KEHC 3399 (KLR)
The court found that the default sentence of 18 months imprisonment imposed by the trial court for non-payment of a Kshs.50,000 fine was illegal, as Section 28(b) of the Penal Code limits the default imprisonment for such a fine to a maximum of six months. The learned judge exercised discretion under the relevant...
Source-derived case information.
- Citation
- [2006] KEHC 3399 (KLR)
- Parties
- Applicant: Evans Mutira Mwandido; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 398 of 2006
- Procedural Posture
- Miscellaneous Application / Application for Bail Pending Appeal; Sentence Review
- Outcome
- application allowed in part; sentence reviewed and substituted
- Judges
- CJ Kendagor
- Legal Topics
- Bail Pending Appeal, Sentencing Illegality, Default Sentence, Cheating Offence, Penal Code Section 315
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Mutira Mwandido
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Application for Bail Pending Appeal; Sentence Review
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether the default sentence of 18 months imprisonment imposed by the trial court was lawful under the Penal Code.
- 3 Whether the period spent in remand should have been considered in sentencing.
Ratio Decidendi
The court found that the default sentence of 18 months imprisonment imposed by the trial court for non-payment of a Kshs.50,000 fine was illegal, as Section 28(b) of the Penal Code limits the default imprisonment for such a fine to a maximum of six months. The learned judge exercised discretion under the relevant provisions of the Criminal Procedure Code to set aside the illegal sentence and substitute it with a lawful default sentence of six months imprisonment. The court also noted that the effect of this order would be the immediate release of the applicant from jail, rendering the appeal moot as to the sentence.
Court Disposition
application allowed in part; sentence reviewed and substituted
Orders
- The sentence of Kshs.50,000 fine in default 18 months imprisonment is set aside.
- In substitution, the applicant to pay a fine of Kshs.50,000 in default six months imprisonment from date of original sentence.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc Crim Appli 398 of 2006
(Application for bond/bail pending appeal from conviction(s) and sentence(s) in Criminal Case No. 286 of 2005 of the Chief Magistrate’s Court at Nairobi)
EVANS MUTIRA MWANDIDO….…………..............................…………………..APPLICANT
VERSUS
REPUBLIC ……………………..……………...........................………………..RESPONDENT
R U L I N G
The Applicant has through Chamber Summons application dated 27th July 2006 applied for bail pending the hearing of his appeal. He has filed his appeal No. 205 of 2006 which is pending before this court. In his submissions the Applicant contended that his appeal has an over whelming chance of success. The Applicant argued that whereas he had been arrested for an alleged assault, the offence was later changed to stealing. He said that he was punished excessively in that he had been in remand for 15 months during the pendency of his case in the court below. That after conviction, the trial court disregarded the period he spent in custody during the pendency of the case and sentenced him to 18 months imprisonment.
Miss Wafula for the State did not oppose the application on the basis that being a first offender and having been in custody for 15 months prior to the sentence of 18 months, the trial court in effect gave the maximum sentence for the offence which is 3 years imprisonment.
I have considered this application. From the record of the proceedings before me, the Applicant was convicted for cheating contrary to Section 315 of the Penal Code. He was sentenced to a fine of Kshs.50,000 in default 18 months imprisonment on 12th May 2006. I agree with the Applicant that not only does his appeal have a high chance of success, as against the sentence, the sentence itself is illegal. Since the learned trial magistrate in exercise of her discretion found Kshs.50,000/- fine was the most appropriate sentence, the default sentence she could have imposed for the offence under Section 28(b) of the Penal Code is a maximum of six months imprisonment. I will exercise my discretion under Section 354 of the Criminal Procedure Code as read with Section 362 and Section 364 of the Criminal Procedure Code and set aside the default sentence of 18 months imprisonment. I order for the Applicant to serve a default sentence of six months imprisonment from date of original sentence in the lower court in default of the fine ordered of Kshs.50,000/-. Since the effect of the order will be for the immediate release of the Applicant from jail, his appeal No. 255 of 2006 is rejected.
The upshot of the application is that the Applicant’s sentence of Kshs.50,000/- fine in default 18 months imprisonment is set aside. In substitution thereof, the applicant to pay fine of Kshs.50,000/- in default six months imprisonment from date of original sentence
Dated at Nairobi this 11th day of October 2006.
LESIIT, J.
JUDGE
Ruling read in presence of:
Applicant present
Miss Wafula for State
CC: Ann
LESIIT, J.
JUDGE