[2003] KEHC 915 (KLR)
The court found that the trial magistrate erred in sentencing the appellant to three years imprisonment in default of payment of a fine of KES 30,000, as Section 28 of the Penal Code, prior to its amendment, only permitted a maximum default term of twelve months. Following the subsequent amendment by the Criminal...
Source-derived case information.
- Citation
- [2003] KEHC 915 (KLR)
- Parties
- Appellant: Kenga Lolo Mgalla; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 351 of 2002
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- appeal allowed in part; sentence varied
- Legal Topics
- Sentencing Principles, Default Imprisonment Terms, Penal Code Section 234, Penal Code Section 28, Criminal Law Amendment, Grievous Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenga Lolo Mgalla
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the default term of imprisonment imposed in lieu of fine was lawful under the Penal Code as it stood at the time of sentencing.
- 2 Whether the appellant is entitled to a reduction of the default imprisonment term in light of subsequent legislative amendments.
Ratio Decidendi
The court found that the trial magistrate erred in sentencing the appellant to three years imprisonment in default of payment of a fine of KES 30,000, as Section 28 of the Penal Code, prior to its amendment, only permitted a maximum default term of twelve months. Following the subsequent amendment by the Criminal Law (Amendment) Act No.5 of 2003, the maximum default term for such a fine is six months. Since the appellant had already served more than the lawful default term, the court substituted the three-year default imprisonment with six months and ordered the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal allowed in part; sentence varied
Orders
- The default imprisonment term of three years is set aside and substituted with six months imprisonment.
- The appellant, having already served this term, is to be released from prison unless otherwise lawfully held.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT MOMBASAAPPELLATE SIDECRIMINAL APPEAL NO.351 OF 2002 (From Original Conviction and Sentence in Criminal Case No.1061 of 2002 of the Chief Magistrates Court at Mombasa delivered on 6. 8.02 –A.W. Ngugi, RM)
KENGA LOLO MGALLA ……………………..…………… APPELLANT VERSUS Kenga Lolo Mgalla was convicted of the offence of Grievous Harm contrary to Section 234 Penal Code and fined Sh.30,000/- or in default to serve three years imprisonment on 6th August 2002. He was not able to raise the fine and has thus served one year imprisonment to date.
He has appealed against sentence on grounds that he is an old man, married with two wives and has twenty children and several grand daughters. He prays for leniency and reduction of sentence. In agreement with Miss Kwena, learned State Counsel, the default term of imprisonment before Section 28 of the Penal Code was amended by the Criminal Law (Amendment) Act No.5 of 2003, was twelve months imprisonment. The appellant, who had been fined 30,000/- was liable, in default, to imprisonment for only twelve months. It was therefore wrong for the appellant to have been sentenced, in default, to three years imprisonment.
When the Criminal Law (Amendment) Act No.5 of 2003 was enacted, it amended Section 28 of the Penal Code. Now a person who is fined Sh.30,000/- is liable, in default, to imprisonment for term not exceeding six months.
For the above reason the default imprisonment term of three years ordered by the trial magistrate is set aside and is substituted by six months imprisonment.
The appellant, who has already served this term, is hereby released from prison unless he is otherwise lawfully held. It is so ordered.
Dated, signed and delivered this 27th August 2003. A.G.A. ETYANG JUDGE