[2024] KEHC 3344 (KLR)
The trial court imposed a sentence of one year imprisonment in default of payment of a Kshs. 10,000 fine for the offence of stealing. Section 28(2) of the Penal Code prescribes a maximum default imprisonment term of three months for such a fine. The sentence imposed exceeded the statutory maximum and was therefore...
Source-derived case information.
- Citation
- [2024] KEHC 3344 (KLR)
- Parties
- Applicant: Samwel Muya Mwangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Revision Case E094 of 2024
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- sentence revised; applicant released
- Judges
- HM Nyaga
- Legal Topics
- Sentencing in Default of Fine, Revision of Sentence, Stealing Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Muya Mwangi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the sentence imposed by the trial court for default of payment of fine was lawful.
- 2 Whether the applicant is entitled to revision of sentence and release from custody.
Ratio Decidendi
The trial court imposed a sentence of one year imprisonment in default of payment of a Kshs. 10,000 fine for the offence of stealing. Section 28(2) of the Penal Code prescribes a maximum default imprisonment term of three months for such a fine. The sentence imposed exceeded the statutory maximum and was therefore unlawful. The High Court, exercising its revisionary jurisdiction, set aside the improper sentence and substituted it with the lawful maximum of three months imprisonment in default. As the applicant had already served the maximum permissible default sentence, the court ordered his immediate release unless otherwise lawfully held.
Court Disposition
sentence revised; applicant released
Orders
- The sentence imposed by the trial court is set aside and substituted with a fine of Kshs. 10,000 in default to serve three months imprisonment.
- The applicant having served the maximum default sentence is to be released from prison custody forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
23 paragraphs
Mwangi v Republic (Revision Case E094 of 2024) [2024] KEHC 3344 (KLR) (22 March 2024) (Ruling)
Neutral citation: [2024] KEHC 3344 (KLR)
Republic of Kenya
In the High Court at Nakuru
Revision Case E094 of 2024
HM Nyaga, J
March 22, 2024
Between
Samwel Muya Mwangi
Applicant
and
republic
Respondent
Ruling
1. This file has been brought up for revision in order to decongest the Nakuru GK Prison.
2. The Applicant was charged with the offence of:Stealing Contrary to Section 268 as read with Section 275 of the Penal Code.
3. The accused pleaded guilty and on 7th December, 2023, he was convicted and sentenced to a fine of Kshs. 10,000/= and in default he was to serve one (1) year imprisonment.
4. Section 28(2) of the Penal Code provides as follows;28(2)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—
5. In imposing a fine of Kshs. 10,000/= the maximum sentence in default thereof should have been three (3) months.
6. Therefore, the sentence imposed by the trial court was improper and is set aside and raised to a fine of Kshs. 10,000/= in default to serve three (3) months imprisonment.
7. The Applicant was convicted on 7th December, 2023, he has already served the maximum sentence in default of the fine imposed upon him.
8. Consequently, I direct that the Applicant be released from prison custody forthwith be set at liberty unless he is lawfully held.
DATED, SIGNED AND DELIVERED AT NAKURU THIS 22ND DAY OF MARCH, 2024. H. M. NYAGAJUDGEIn the presence of;C/A OleperonN/A for state