[2022] KEHC 11053 (KLR)
The court found that the default imprisonment term of one year imposed on the applicant for failure to pay a fine of Kshs. 30,000 was unlawful, as Section 28(2) of the Penal Code limits default imprisonment to six months for fines between Kshs. 15,000 and Kshs. 50,000. The court further held that, after considering...
Source-derived case information.
- Citation
- [2022] KEHC 11053 (KLR)
- Parties
- Applicant: Lawrence Onyango Mark; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E031 of 2022
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- Application allowed in part; sentence recalculated; applicant to serve remaining period in custody until 11/9/2022.
- Judges
- JN Kamau
- Legal Topics
- Sentencing, Default Imprisonment, Remission of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Onyango Mark
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the default imprisonment imposed exceeded the lawful period under Section 28(2) of the Penal Code.
- 2 Whether the applicant's sentence should be recalculated based on remission and statutory limits.
- 3 Whether the applicant is suitable for a community service order.
Ratio Decidendi
The court found that the default imprisonment term of one year imposed on the applicant for failure to pay a fine of Kshs. 30,000 was unlawful, as Section 28(2) of the Penal Code limits default imprisonment to six months for fines between Kshs. 15,000 and Kshs. 50,000. The court further held that, after considering remission, the applicant's lawful release date should be 11/9/2022 rather than 7/12/2022, which was based on the unlawful default imprisonment. The applicant was found unsuitable for a community service order due to his status as a foreigner, and was ordered to serve the remainder of his sentence in custody until the recalculated release date.
Court Disposition
Application allowed in part; sentence recalculated; applicant to serve remaining period in custody until 11/9/2022.
Orders
- The applicant shall serve the remaining period of his sentence until 11/9/2022 in custody.
- The default imprisonment term of one year is set aside as unlawful.
Full Case Text
Judgment text and source record
17 paragraphs
Mark v Republic (Criminal Revision E031 of 2022) [2022] KEHC 11053 (KLR) (1 August 2022) (Ruling)
Neutral citation: [2022] KEHC 11053 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Revision E031 of 2022
JN Kamau, J
August 1, 2022
ORIGINALLY CR CASE NO E382 OF 2022
Between
Lawrence Onyango Mark
Applicant
and
Republic
Respondent
Ruling
1. The Applicant was charged with the offence of stealing contrary to Section 275 of the Penal Code Cap 63 (Laws of Kenya). He was convicted and fined Kshs. 30,000/- and in default to serve one (1) year imprisonment. Section 28 (2) of the Penal Code provides that where a fine exceeds Kshs. 15,000/- but does not exceed Kshs. 50,000/-, the default Judgment is six (6) months imprisonment. Taking into account the remission of the sentence, the Applicant’s sentence ought to run 11/9/2022 and not 7/12/2022 which release date was based on the default imprisonment which was unlawful, illegal and had no legal basis. Having noted the Report by Erisomo G. Oduya Probation Officer that was dated 27/7/2022, that the Applicant is a foreigner, I do not find him suitable for community service order. Accordingly, I hereby direct that he serves the remaining period of his sentence until 11/9/2022 in custody.Orders accordingly.
DATED AND DELIVERED AT BUSIA ON THIS 1ST DAY OF AUGUST 2022. J. KAMAUJUDGE