[2019] KEHC 1285 (KLR)
The court found that the default sentence imposed by the trial magistrate for non-payment of the fine was illegal as it did not comply with Section 28(2) of the Penal Code. The court substituted the sentence with a lawful one: a fine of Kshs. 300,000 or, in default, one year imprisonment. Regarding the compensation...
Source-derived case information.
- Citation
- [2019] KEHC 1285 (KLR)
- Parties
- Applicant: Matheka Kilonzo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 20 of 2019
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- Application allowed. Sentences revised. Applicant to be set free unless otherwise lawfully held.
- Legal Topics
- Dangerous Driving, Sentencing, Compensation Orders, Double Jeopardy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Matheka Kilonzo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the default sentence imposed for the fine was lawful under Section 28(2) of the Penal Code.
- 2 Whether the order for compensation in the criminal case amounted to double jeopardy and was legally sustainable.
Ratio Decidendi
The court found that the default sentence imposed by the trial magistrate for non-payment of the fine was illegal as it did not comply with Section 28(2) of the Penal Code. The court substituted the sentence with a lawful one: a fine of Kshs. 300,000 or, in default, one year imprisonment. Regarding the compensation order, the court held that since the compensation could be recovered in a civil suit, imposing it in the criminal case subjected the applicant to double jeopardy, which is impermissible. The compensation order was therefore set aside. The court further found that the applicant had served sufficient sentence and ordered his immediate release unless otherwise lawfully held.
Court Disposition
Application allowed. Sentences revised. Applicant to be set free unless otherwise lawfully held.
Orders
- The default sentence for the fine is set aside and substituted with a fine of Kshs. 300,000 or, in default, one year imprisonment.
- The order for compensation is set aside.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO. 20 OF 2019
MATHEKA KILONZO......APPLICANT
VERSUS
REPUBLIC......................RESPONDENT
RULING
1. The Applicant was charged with the offence of causing death by dangerous driving contrary to Section 46 of the Traffic Act, Cap 403 Laws of Kenya. It was alleged that on 14th April, 2014 at around 6. 00 am along Eastern bypass near Transami area being the driver for Motor vehicle Reg. No. KBC 078G make Isuzu Lorry drove the said vehicle in a dangerous manner and caused the death of a pedestrian one Daisy Akinyi.
2. After the trial, he was sentenced to pay a fine of Kshs. 200,000/= in default serve three years imprisonment. He was further ordered to compensate the father of the deceased in default of which he serves a further two years imprisonment. The latter sentence was ordered to run consecutive to the first. The learned trial magistrate further directed that the compensation was recoverable as a civil debt in the event a civil suit is filed.
3. Before this court, he asked the court to set him free because he only had two months to complete his sentence, which application the Respondent did not oppose.
4. As regards the first limb of the sentence, the same was illegal in that the default sentence did not accord with Section 28(2) of the Penal Code. Accordingly, I set aside and substitute it with an order that the Applicant shall pay a fine of Kshs. 300,000/= in default serve 1 year imprisonment.
5. As regards the second limb of the sentence, my view is that it was not properly applied. The learned magistrate noted that the compensation could as well be recoverable in a civil suit. Thus, ordering compensation in a criminal case was tantamount to subjecting the Applicant to double jeopardy. He had already been subjected to a punishment as the law provides by the penalty under Section 46 of the Penal Code. A further punishment that is recovered in a civil suit was by no means illegal. To that extent, I set aside the order of compensation.
6. In sum, I find that the Applicant has served sufficient sentence. I order that he be forthwith set free unless otherwise lawfully held.
Dated and Delivered at Nairobi This 25th day of November, 2019.
G.W.NGENYE-MACHARIA
JUDGE.
In the presence of;
1. Applicant in person.
2. M/s Akunja for the Respondent.