[2013] KEHC 3212 (KLR)
The High Court found that the sentence of 12 years imprisonment in default of payment of a Kshs. 20,000 fine was illegal, as it far exceeded the statutory maximum for the offence and the prescribed default imprisonment under Section 28(2) of the Penal Code. The court held that the error was an oversight and that the...
Source-derived case information.
- Citation
- [2013] KEHC 3212 (KLR)
- Parties
- Appellant: Mkuzi Tsama Mkuzi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 90 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- GO Shikwe
- Legal Topics
- Sentencing Illegality, Stealing Offence, Penal Code Section 275, Default Sentence Scale
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mkuzi Tsama Mkuzi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was harsh, excessive, and illegal.
- 2 Whether the default imprisonment term for non-payment of fine was in accordance with the law.
Ratio Decidendi
The High Court found that the sentence of 12 years imprisonment in default of payment of a Kshs. 20,000 fine was illegal, as it far exceeded the statutory maximum for the offence and the prescribed default imprisonment under Section 28(2) of the Penal Code. The court held that the error was an oversight and that the appellant had already served more than one and a half years in custody, which was deemed sufficient punishment. The sentence was revised to the period already served, and the appellant was ordered to be released unless otherwise lawfully held.
Court Disposition
appeal_allowed
Orders
- The sentence of imprisonment is revised to the term already served.
- The appellant is to be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
Criminal Appeal 90 of 2011 [if gte mso 9]><xml>
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(From Original Conviction and Sentence in Criminal Case No. 280 of 2010 of the Senior Resident Magistrate’s Court at Mariakani – D. M. Machage (SRM))
MKUZI TSAMA MKUZI ……………………………….…. APPELLANT
- Versus -
REPUBLIC ………………………..………………….… RESPONDENT
JUDGMENT
The Appellant was sentenced to a fine of Kshs. 20,000/- in default 12 years imprisonment for the offence of Stealing contrary to Section 275 of the Penal Code.
The particulars are that on the 1st day of December 2010 at Mwangutwa Primary School in Kaloleni – Kilifi County he stole one saw valued at Kshs. 11,000/- the property of M/s ST. SIMEON CHILD DEVELOPMENT CENTRE.
The appeal rests on the issue of the sentence being harsh and excessive. The offence of theft contrary to Section 275 of the Penal Code carries a maximum of three years.
Section 28(2) penal provides for a scale for default sentences.
The Appellant was fined Kshs. 20,000/- the corresponding imprisonment term should have been six months imprisonment. The sentence of 12 years appears to have been an oversight. As it stands its clearly illegal.
A perusal of the lower Court record shows that he was convicted in the year 2010. He has been in prison custody for more than 11/2 years. I deem that to be sufficient punishment. The sentence of imprisonment is revised to such term as he has already served. He is set at liberty unless otherwise lawfully held.
Judgement read and delivered in open Court this 16th day of May, 2013.
M. MUYA
JUDGE
In the presence of:-
Mr. Mungai for the State
Appellant - present
Court clerk – Mr. Musundi
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