[2020] KEHC 5705 (KLR)
The court found that the default sentence of six months imprisonment 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....
Source-derived case information.
- Citation
- [2020] KEHC 5705 (KLR)
- Parties
- Applicant: Joseph Ndegwa Wanjira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 105 of 2020
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- Sentence revised; applicant released unless otherwise lawfully held.
- Legal Topics
- Sentencing Illegality, Curfew Offences, Public Order Act, Penal Code Section 28, Covid19 Related Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ndegwa Wanjira
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the default term of imprisonment imposed for non-payment of fine exceeded the statutory maximum period allowed.
- 2 Whether the sentence should be revised in light of the illegality and prevailing COVID-19 circumstances.
Ratio Decidendi
The court found that the default sentence of six months imprisonment 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 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
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL REVISION NO.105 OF 2020
JOSEPH NDEGWA WANJIRA.................................................APPLICANT
VERSUS
REPUBLIC ..........................................................................RESPONDENT
(Revision of the Original Sentence dated 06. 05. 2020 in Nanyuki Criminal Case No.359 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, JOSEPH NDEGWA WANJIRA, 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 should not 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 in order 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