[2022] KEHC 11120 (KLR)
The court found that the applicant was sentenced to twelve months imprisonment in default of paying a fine of Ksh 50,000/-, whereas the law under section 28(7) of the Penal Code limits default imprisonment for such a fine to a maximum of six months. The sentence imposed was therefore illegal and unlawful. However,...
Source-derived case information.
- Citation
- [2022] KEHC 11120 (KLR)
- Parties
- Applicant: Everline Makoki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E020 of 2022
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- Application allowed to the extent of declaration of illegality of sentence; release ordered if applicant still in custody.
- Judges
- JN Kamau
- Legal Topics
- Sentencing Illegality, Alcoholic Drinks Control, Default Imprisonment, Statutory Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Everline Makoki
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the sentence imposed on the applicant exceeded the statutory maximum for default imprisonment for the offence charged.
- 2 Whether the applicant is entitled to release if still in custody after serving an unlawful sentence.
Ratio Decidendi
The court found that the applicant was sentenced to twelve months imprisonment in default of paying a fine of Ksh 50,000/-, whereas the law under section 28(7) of the Penal Code limits default imprisonment for such a fine to a maximum of six months. The sentence imposed was therefore illegal and unlawful. However, since the applicant had already completed the sentence, the court could not review or alter the sentence. The court directed that if the applicant was still in custody, she should be released unless held for any other lawful cause.
Court Disposition
Application allowed to the extent of declaration of illegality of sentence; release ordered if applicant still in custody.
Orders
- If the applicant is still in custody, she shall be released from prison unless held for any other lawful cause.
Full Case Text
Judgment text and source record
16 paragraphs
Makoki v Republic (Criminal Revision E020 of 2022) [2022] KEHC 11120 (KLR) (3 August 2022) (Ruling)
Neutral citation: [2022] KEHC 11120 (KLR)
Republic of Kenya
In the High Court at Nyamira
Criminal Revision E020 of 2022
JN Kamau, J
August 3, 2022
Between
Everline Makoki
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged with dealing with alcoholic drinks without a licence contrary to section 7 (1)(b) as read with section 7 (1) (b) as read with section 34 (a) of the Alcoholic Drinks Control Act No 4 of 2010. He was fined Ksh 50,000/- in default to serve twelve (12) months imprisonment. Section 28(7) of the Penal Code provides that the default imprisonment for a fine exceeding Kshs 15,000/- but not exceeding Ksh 50,000/- is six (6) months. The applicant therefore served an illegal and unlawful sentence that had no basis in law. As he has already completed his sentence, the court cannot review the sentence. However, in the unlikely event that the applicant is still in custody, it is hereby directed that he be released from prison unless he be held for any other lawful cause. Orders accordingly.
DATED AND DELIVERED AT NYAMIRA ON THIS 3RD AUGUST 2022J. KAMAUJUDGE