[2020] KEHC 4351 (KLR)
The court found that the default sentence of five months imprisonment imposed on the applicant for non-payment of a fine of Kshs.8,000 was illegal, as it exceeded the statutory maximum of three months prescribed by Section 28(2) of the Penal Code. The court exercised its revisionary jurisdiction to set aside the...
Source-derived case information.
- Citation
- [2020] KEHC 4351 (KLR)
- Parties
- Applicant: Franklin Musyoka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 116 of 2020
- Procedural Posture
- Criminal Revision / Order in Revision
- Outcome
- application allowed
- Legal Topics
- Sentencing, Default Sentence, Public Health Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Franklin Musyoka
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order in Revision
Legal Issues
- 1 Whether the default sentence imposed for non-payment of fine exceeded the statutory maximum under Section 28(2) of the Penal Code.
- 2 Whether the applicant is entitled to have the default sentence revised.
Ratio Decidendi
The court found that the default sentence of five months imprisonment imposed on the applicant for non-payment of a fine of Kshs.8,000 was illegal, as it exceeded the statutory maximum of three months prescribed by Section 28(2) of the Penal Code. The court exercised its revisionary jurisdiction to set aside the illegal sentence and substituted it with the period already served, thereby ordering the applicant's immediate release unless otherwise lawfully held.
Court Disposition
application allowed
Orders
- The default sentence of five months imprisonment is set aside and substituted with the period already served.
- The applicant is to be set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL REVISION NO.116 OF 2020
(From Original Conviction and Sentence in Nanyuki Criminal Case No.317 of 2020)
FRANKLIN MUSYOKA...............................................................................................APPLICANT
VERSUS
REPUBLIC.................................................................................................................RESPONDENT
13/07/2020
Coram: Before Waweru, J
(In chambers)
ORDER IN REVISION
1. At the application of the convict herein, I have called for and examined the record of the trial court.
2. The convict, FRANKILIN MUSYOKA, was convicted upon his own plea of an offence under the Public Health (COVID-19 Restriction of Movement of Persons of Related Measures/Rules, 2020 made under the Public Health Act. He was fined Kshs.8,000/00 and in default to serve five (5) months imprisonment. He did not pay the fine and has been serving the sentence from 08/05/2020.
3. The convict’s complaint is with regard to the default sentence only.
4. The default sentence is illegal in view of Section 28(2) of the Penal Code; it should not have been more than three (3) months for a fine that does not exceed Kshs.15,000/00.
5. I will in t he circumstances set aside the default sentence and substitute therefore the period already served.
6. In the circumstances the convict that be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
GIVEN under my hand and seal of this Honourable Court this 13th day of July 2020
H.P.G. WAWERU
JUDGE.
ISSUED at NANYUKI this 14th day of July 2020.
DEPUTY REGISTRAR
NANYUKI HIGH COURT