[2018] KEHC 7861 (KLR)
The court found that the sentence imposed by the trial court—a fine of Kshs.10,000 or 30 days imprisonment—was illegal as it exceeded the statutory maximum fine of Kshs.500 or three months imprisonment for the offence of disorderly conduct under Section 33(2) of the Penal Code. Exercising its revisionary...
Source-derived case information.
- Citation
- [2018] KEHC 7861 (KLR)
- Parties
- Appellant: James Muthuri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 4 of 2018
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- sentence quashed and revision allowed
- Judges
- CA Otieno
- Legal Topics
- Sentencing Illegality, Revisionary Powers, Minor Offences, Disorderly Conduct
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Muthuri
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the sentence imposed for disorderly conduct exceeded the statutory maximum and was therefore illegal.
- 2 Whether the High Court should exercise its revisionary jurisdiction to correct the illegal sentence.
Ratio Decidendi
The court found that the sentence imposed by the trial court—a fine of Kshs.10,000 or 30 days imprisonment—was illegal as it exceeded the statutory maximum fine of Kshs.500 or three months imprisonment for the offence of disorderly conduct under Section 33(2) of the Penal Code. Exercising its revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code, the High Court quashed the illegal sentence, ordered a refund of any fines paid, and directed the release of any accused persons still in custody, considering the period served as adequate and commensurate with the offence charged.
Court Disposition
sentence quashed and revision allowed
Orders
- The illegal sentence is quashed.
- Any fines paid by the accused persons are to be refunded.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL REVISION NO. 4 OF 2018
JAMES MUTHURI…………………………...….APPEALLANT
VERSUS
REPUBLIC……………………………………....RESPONDENT
R U L I N G
1. I have perused the proceedings of 30/1/2018 before D. Mochache PM in Shanzu PMCRC No. 59 of 2018.
2. The records reveal that, the charge, the subject matter of this request for revision was one of DISORDERLY CONDUCT CONTRARY TO SECTION 33(1) AS READ WITH SECTION 33(2). That provision of the law provides:-
“Any person found by a police officer to be drunk and incapable of drunk and disorderly in near a street, road licensed premises, shop hotel or other public place may be arrested without a warrant and brought without unreasonable delay before a Magistrate”.
Any person convicted of being drunk and incapableor drunk and disorderly in or near a place referred in subsection (1) shall be liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding three months or to both”.
3. The four accused person pleaded guilty to the charge and were recordingly convicted on own plea of guilty and were sentence as follows:-
“Fine of Kshs.10,000/= in default 30 days imprisonment”.
4. It is clear that the fine imposed is clearly illegal under the law. Being so illegal, the court is in law empowered to correct such by an order of revision under section 362 as read with 364.
5. I do invoke the courts powers, revise the sentence and qush it for being illegal. Noting that the sentence was meted out on 30th January 2018. I order that if any of the accused persons have paid the fine let the same be refunded and those in custody be released forthwith for I consider the period served to be adequate and commensurate with the offence charged.
6. I may only add that for such minor offences, largely based on inability to conducts one’s personal life decently and in a dignified manner, courts should really consider alternative sentences away from imprisonment terms which are in all event a financial burden to the public wherever one is to be kept in prison.
7. Let this ruling be certified and availed to the trial court for purposes of having original records rectified.This revision affects the entire sentence against the four (4) accused persons.
Dated and delivered at Mombasa this 2nd day of February 2018.
HON. P.J.O. OTIENO
JUDGE