[2022] KEHC 10053 (KLR)
The court found that while Section 333(2) of the Criminal Procedure Code requires consideration of time spent in custody when imposing a custodial sentence, this provision does not apply where the sentence is a fine with a default custodial term. The trial court erred by imposing a default custodial sentence of...
Source-derived case information.
- Citation
- [2022] KEHC 10053 (KLR)
- Parties
- Applicant: James Maoga Maturi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E389 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Application for Consideration of Time Spent in Custody and Correction of Default Sentence
- Outcome
- Application partially allowed; default sentence set aside and substituted.
- Judges
- LN Mutende
- Legal Topics
- Sentencing, Default Sentence, Time Spent in Custody, Supervisory Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Maoga Maturi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Consideration of Time Spent in Custody and Correction of Default Sentence
Legal Issues
- 1 Whether the trial court erred by failing to consider time spent in custody as required by Section 333(2) of the Criminal Procedure Code.
- 2 Whether the default custodial sentence imposed for non-payment of fine exceeded the statutory maximum under Section 28(2) of the Penal Code.
Ratio Decidendi
The court found that while Section 333(2) of the Criminal Procedure Code requires consideration of time spent in custody when imposing a custodial sentence, this provision does not apply where the sentence is a fine with a default custodial term. The trial court erred by imposing a default custodial sentence of three years for non-payment of a fine of Ksh 300,000, which exceeded the statutory maximum of twelve months under Section 28(2) of the Penal Code. The High Court exercised its supervisory jurisdiction to correct the sentence, setting aside the default term and substituting it with a lawful default sentence of one year imprisonment in case of non-payment of the fine.
Court Disposition
Application partially allowed; default sentence set aside and substituted.
Orders
- The default custodial sentence of three years is set aside and substituted with a default sentence of one year imprisonment in case of non-payment of the fine.
- The application succeeds to the extent of correcting the default sentence.
Full Case Text
Judgment text and source record
28 paragraphs
Maturi v Republic (Criminal Revision E389 of 2021) [2022] KEHC 10053 (KLR) (Crim) (6 July 2022) (Ruling)
Neutral citation: [2022] KEHC 10053 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Revision E389 of 2021
LN Mutende, J
July 6, 2022
Between
James Maoga Maturi
Applicant
and
Republic
Respondent
Ruling
1. James Maoga Maturi, the applicant, approached this court through a Notice of Motion filed herein on 5th November, 2021 seeking consideration of time he spent in custody during trial.
2. The application is premised on grounds that the court did not take into account time spent in custody as provided by Section 333(2) of the Criminal Procedure Code (CPC).
3. The State through learned State Counsel Mr. Otieno conceded the application.
4. The applicant was charged with the offence of stealing contrary to Section 278 A of the Penal Code. Particulars being that on 2nd day of July, 2019 at Kawagware Area in Dagoretti Sub-County within Nairobi County, stole a motor-vehicle Registration No. KAZ 398Z Toyota Hiace matatu valued at Kenya Shillings Five Hundred Thousand (Ksh 500,000/-) the property of Stephen Omosa Nyangau.
5. The penalty for a person who steals a motor-vehicle is provided for by Section 278A of the Penal Code that Stipulates as follows:Stealing motor vehicle If the thing stolen is a motor vehicle within the meaning of the Traffic Act (Cap. 403), the offender is liable to imprisonment for seven years.
6. I note that the applicant was in remand custody for one year prior to being released on bond during trial, but instead of the court imposing a custodial sentence it opted to impose a fine of Kenya Shillings Three Hundred Thousand (300,000/-) with a default sentence of three (3) years imprisonment. Having made the option, the court was required to comply with the law.
7. Section 28(2) of the Penal Code provides that:In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Cap. 91) ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale—Amount Maximum period Exceeding Sh. 50,000…………………12 months.
8. This court has supervisory jurisdiction over the subordinate court as regards satisfaction of the regularity of orders made. Therefore I must act suo moto.
9. What is provided by Section 28 of the Penal Code is an enactment of Statute therefore the sentence commences from the date it is imposed as opposed to time of arrest or arraignment. The question of Section 333(2) of the (CPC) as alleged does not arise.
10. What I can however not overlook is the question of the incorrectness of the default sentence. In the premises I hereby set aside the sentence meted out which I substitute with a sentence of a fine of Kenya Shillings Three Hundred Thousand (Ksh 300,000/-) and in default to serve one (1) year imprisonment.
11. The application succeeds to that extent.
12. It is to ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 6TH DAY OF JULY, 2022. L. N. MUTENDEJUDGEIn the presence of:ApplicantMs. Chege - ODPPCourt Assistant - Mutai