[2020] KEHC 5712 (KLR)
The court found that the default imprisonment term of six months imposed for non-payment of a Kshs.10,000 fine was illegal, as Section 28(2) of the Penal Code limits the default imprisonment to a maximum of three months for such a fine. The court exercised its revisionary jurisdiction to set aside the illegal...
Source-derived case information.
- Citation
- [2020] KEHC 5712 (KLR)
- Parties
- Applicant: Henry Mihang’o; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 100 of 2020
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- sentence revised; applicant to be released unless otherwise lawfully held
- Legal Topics
- Sentencing Illegality, Curfew Offences, Public Order Act, Covid19 Regulations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Mihang’o
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the default imprisonment term of six months for non-payment of a Kshs.10,000 fine was lawful.
- 2 Whether the sentence should be revised in light of the COVID-19 crisis and statutory provisions.
Ratio Decidendi
The court found that the default imprisonment term of six months imposed for non-payment of a Kshs.10,000 fine was illegal, as Section 28(2) of the Penal Code limits the default imprisonment to a maximum of three months for such a fine. The court exercised its revisionary jurisdiction to set aside the illegal sentence. Additionally, considering the COVID-19 pandemic and the need to decongest prisons, the court substituted the sentence with a term equivalent to the period already served, ordering the applicant's immediate release unless otherwise lawfully held.
Court Disposition
sentence revised; applicant to be released unless otherwise lawfully held
Orders
- The default term of imprisonment of six months is set aside.
- The sentence is substituted with imprisonment equivalent to time already served.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL REVISION NO.100 OF 2020
HENRY MIHANG’O........................................................APPLICANT
VERSUS
REPUBLIC..................................................................RESPONDENT
(Revision of the Original Sentence dated 06. 05. 2020
in Nanyuki Criminal Case No.388 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, HENRY MIHANG’O, was convicted upon his own plea of Breach of Curfew Order contrary 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 term of imprisonment of six (6) months is illegal. It shouldnot exceed three (3) months imprisonment for a fine of Kshs.10,000/00. See Section 28(2) of the Penal Code.
5. In the circumstances, I will set aside that term of imprisonment of six(6) months.
6. Because of the Coronavirus (COVID-19) crisis in our country, and inorder to assist in de-congesting the prisons, I shall substitute a term of imprisonment equivalent to 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