[2020] KEHC 5695 (KLR)
The court found that the default sentence of six months imprisonment imposed on the applicant for failure to pay a fine of Kshs.10,000 for breach of curfew order 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...
Source-derived case information.
- Citation
- [2020] KEHC 5695 (KLR)
- Parties
- Applicant: Joseph Wachira Muriuki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 101 of 2020
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- sentence revised; applicant to be released unless otherwise lawfully held
- Legal Topics
- Breach of Curfew Order, Sentencing Illegality, Default Sentence, Public Order Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Wachira Muriuki
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the default sentence of six months imprisonment imposed for breach of curfew order was lawful.
- 2 Whether the sentence should be revised in light of statutory provisions and prevailing circumstances.
Ratio Decidendi
The court found that the default sentence of six months imprisonment imposed on the applicant for failure to pay a fine of Kshs.10,000 for breach of curfew order 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. Further, considering the COVID-19 pandemic and the need to decongest prisons, the court substituted the sentence with 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 term of six months imprisonment in default of fine is set aside.
- The sentence is substituted with 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.101 OF 2020
JOSEPH WACHIRA ............................................APPLICANT
VERSUS
REPUBLIC.........................................................RESPONDENT
(Revision of the Original Sentence dated 06. 05. 2020 in Nanyuki Criminal Case No.366 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 WACHIRA MURIUKI, was convicted upon his own plea ofBreach of Curfew Ordercontrary toOrder 3of thePublic Order (State Curfew) Order, 2020as read withSection 8(6)of thePublic Order Act, Cap 56.
3. On 06. 05. 2020 he 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 sentence is illegal. It should not have exceeded imprisonment for three (3) months. SeeSection 28(2) of thePenal Code.
5. In the circumstances I will set aside the term of imprisonment of six months.
6. Because of the Coronavirus (COVID-19) crisis in our country, and in order to assist in de-congesting our prisons, I will substitute therefore thetime 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