[2023] KEHC 23839 (KLR)
The High Court found that the default custodial sentence of 12 months imposed for non-payment of the fine was the statutory maximum and, in the circumstances of the applicant's remorse, positive probation report, and support for reintegration, was inappropriate. The court exercised its revisionary jurisdiction to...
Source-derived case information.
- Citation
- [2023] KEHC 23839 (KLR)
- Parties
- Applicant: Beatrice Kemei; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E098 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Sentence Revision
- Outcome
- sentence revised; applicant released
- Judges
- JK Sergon
- Legal Topics
- Sentencing Revision, Default Sentences, Alcoholic Drinks Control, Community Service Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Kemei
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Revision
Legal Issues
- 1 Whether the default custodial sentence imposed on the applicant was appropriate in the circumstances.
- 2 Whether the sentences should run concurrently or consecutively.
- 3 Whether the applicant is eligible for release based on the sentence review report.
Ratio Decidendi
The High Court found that the default custodial sentence of 12 months imposed for non-payment of the fine was the statutory maximum and, in the circumstances of the applicant's remorse, positive probation report, and support for reintegration, was inappropriate. The court exercised its revisionary jurisdiction to reduce the default sentence to 8 months, noting that the applicant had already served this period. The sentences were ordered to run concurrently, and the applicant was deemed to have fully served her sentence, warranting her immediate release from custody unless otherwise lawfully held.
Court Disposition
sentence revised; applicant released
Orders
- The default custodial sentence of 12 months is set aside and substituted with a default sentence of 8 months from the date of sentence.
- The sentences are to run concurrently.
Full Case Text
Judgment text and source record
24 paragraphs
Kemei v Republic (Criminal Revision E098 of 2023) [2023] KEHC 23839 (KLR) (19 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23839 (KLR)
Republic of Kenya
In the High Court at Kericho
Criminal Revision E098 of 2023
JK Sergon, J
October 19, 2023
Between
Beatrice Kemei
Applicant
and
Republic
Respondent
Ruling
1. Beatrice Kemei, hereinafter referred to as the applicant pleaded guilty to a charge of selling of alcoholic drinks without license contrary to section 7(1) (b) as read with section 62 of the Alcoholic Drinks Control Act No. 4 of 2010.
2. On February 1, 2023, Hon. B. R. Kipyegon, Learned Principal Magistrate sentenced the Applicant to a fine of Kshs. 100,000/= in default to serve 1 year imprisonment on Count 1 and a fine of Kshs. 20,000/= in default to serve 2 months imprisonment on Count 2.
3. The Proceedings relating to the aforesaid case, that is Kericho C.M.C C.R Case No. 349 of 2023 –Republic-vs-Beatrice Kemei were placed before this Court pursuant to the provisions of section 362 and 364 of theCriminal Procedure Code.
4. The Probation Officer filed a sentence review report on July 24, 2023. In the said report it was noted that the applicant was remorseful and promised not to re-offend but find legal ways of earning income. The prison authorities stated that the Applicant was favourable for immediate release, on a non-custodial sentence. The applicant’s family was willing to welcome her back home and support her towards reintegration and the area Assistant Chief was not opposed to her release. The probation officer therefore recommended that the applicant completes the remaining term of her sentence on Community Service Order (CSO).
5. I have already set out the sentence pronounced by the Learned Principal Magistrate. The Applicant has so far served seven (7) months. I have also noted that the learned Principal Magistrate did not indicate whether the sentences were to run consecutively or concurrently. In the circumstances, the sentences herein should run concurrently. Consequently, the Applicant having served seven (8) months of the default sentence and she is remaining with five (4) months to complete her sentence.
6. Having considered the fact that the sentence review report is favourable. I have carefully examined the record and it is clear that the Applicant was sentenced to a fine of Kshs.100,000/= in default to serve 12 months. Under section 28 of the Penal Code, a default sentence in respect of a fine of Kshs.100,000/= is a maximum of 12 months. It is apparent that the applicant was sentenced to serve the maximum default sentence.
7. I find the default sentence to be inappropriate in the circumstance. In the end and in exercise of this court’s revisionary power, I hereby set aside the default sentence of 12 months and substitute it with a default sentence of 8 months from the date of sentence.
8. The Applicant has so far served 8 months of the default sentence of 12 months.
9. Having reduced the default sentence to 8 months, it is clear that the applicant Namely: Beatrice Kemei has fully served the default sentence. She should be set free forthwith and released from custody unless lawfully held.
DATED, SIGNED AND DELIVERED THIS 19TH DAY OF OCTOBER, 2023. ………………………J.K. SERGON