[2020] KEHC 6834 (KLR)
The court exercised its revisionary jurisdiction to set aside the default custodial sentence imposed on the applicant for failure to pay a fine for unlawfully removing forest produce. In light of the COVID-19 pandemic and the urgent need to decongest prisons, the court found it just to substitute the remaining...
Source-derived case information.
- Citation
- [2020] KEHC 6834 (KLR)
- Parties
- Applicant: Japhet Kimathi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 68 of 2020
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- Default custodial sentence set aside and substituted with time served; applicant to be released unless otherwise lawfully held.
- Judges
- DW Mbuteti
- Legal Topics
- Sentencing Revision, Forest Offences, Covid19 Prison Decongestion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japhet Kimathi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the default custodial sentence should be revised in light of the COVID-19 crisis and prison decongestion efforts.
- 2 Whether the court has jurisdiction to substitute the default sentence with time served under the relevant statutory and constitutional provisions.
Ratio Decidendi
The court exercised its revisionary jurisdiction to set aside the default custodial sentence imposed on the applicant for failure to pay a fine for unlawfully removing forest produce. In light of the COVID-19 pandemic and the urgent need to decongest prisons, the court found it just to substitute the remaining sentence with the period already served. The court relied on its powers under Article 159(2) of the Constitution and Sections 362 and 364 of the Criminal Procedure Code to promote substantive justice and public health objectives. The applicant was ordered to be released unless otherwise lawfully held.
Court Disposition
Default custodial sentence set aside and substituted with time served; applicant to be released unless otherwise lawfully held.
Orders
- The default sentence of ten months imprisonment is set aside and substituted with time already served.
- The convict shall be set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL REVISION NO.68 OF 2020
JAPHET KIMATHI……………………..……..………………….…………………..APPLICANT
VERSUS
REPUBLIC …………………………..……………………………………………RESPONDENT
(Revision of the Original Sentence dated 27. 02. 2020 in Nanyuki Criminal Case No.233 of 2020)
07. 04. 2020
Before Justice H P G Waweru
In Chambers
ORDER ON REVISION
1. I have examined the trial court record.
2. The convict herein, JAPHET KIMATHI, was on 27. 02. 2020 sentenced to a fine of Kshs.30,000= and in default to serve ten (10) months imprisonment for the offence of Unlawfully removing forest produce contrary to Section 64(2) of the Forest Conservation & Management Act, 2016. He did not pay the fine.
3. Because of the current Coronavirus (COVID – 19) crisis in our country, and in an effort to de-congest the prisons, and in exercise of the powers of the Court under Article 159(2) of the Constitution and Sections 362 & 364 of the Criminal Procedure Code, I hereby set aside the default sentence and substitute therefore the time already served. .
4. The convict shall therefore be set at liberty forthwith unless otherwise lawfully held.
5 It is so ordered.
DATED AT NANYUKI THIS 7TH DAY OF APRIL, 2020
H.P.G. WAWERU
JUDGE
DEPUTY REGISTRAR
NANYUKI HIGH COURT