[2022] KEHC 11049 (KLR)
The court found that the default sentence imposed on the applicant exceeded the statutory maximum provided under Section 28(2) of the Penal Code, which limits default imprisonment for fines between Kshs. 15,000 and Kshs. 50,000 to six months. The applicant had already served four and a half months in custody, which,...
Source-derived case information.
- Citation
- [2022] KEHC 11049 (KLR)
- Parties
- Applicant: Badiru Mwima; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E066 of 2022
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application allowed
- Judges
- JN Kamau
- Legal Topics
- Sentencing Principles, Default Sentences, Stealing Offences, Handling Stolen Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Badiru Mwima
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the default sentence imposed upon the applicant was lawful under Section 28(2) of the Penal Code.
- 2 Whether the applicant was entitled to release based on time already served.
Ratio Decidendi
The court found that the default sentence imposed on the applicant exceeded the statutory maximum provided under Section 28(2) of the Penal Code, which limits default imprisonment for fines between Kshs. 15,000 and Kshs. 50,000 to six months. The applicant had already served four and a half months in custody, which, with remission, satisfied the lawful sentence. The court further noted that the probation report did not recommend community service due to the applicant's foreign status, but this did not affect the computation of time served. Consequently, the applicant was entitled to immediate release as he had completed the sentence required by law.
Court Disposition
application allowed
Orders
- The applicant is released from custody forthwith unless held for any other lawful cause.
Full Case Text
Judgment text and source record
16 paragraphs
Mwima v Republic (Criminal Revision E066 of 2022) [2022] KEHC 11049 (KLR) (1 August 2022) (Ruling)
Neutral citation: [2022] KEHC 11049 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Revision E066 of 2022
JN Kamau, J
August 1, 2022
Between
Badiru Mwima
Applicant
and
Republic
Respondent
Ruling
1. The Applicant was charged with the offence of stealing contrary to Section 268 as read with Section 275 of thePenal Code Cap 63 (Laws of Kenya). He had also been charged with the alternative charge of handling stolen property contrary to Section 322 (1) (2) of the Penal Code. He was arrested on 15/1/2022 and arraigned in Court where he denied the charges. He admitted to the facts on 1/3/2022 and was convicted. He was fined Kshs. 20,000/- or in default to serve one (1) year imprisonment on 15/3/2022. According to Section 28 (2) of the Penal Code, a fine exceeding Kshs. 15,000/- but not exceeding Kshs. 50,000/- attracts a default imprisonment of six (6) months. Taking remission of the sentence into consideration, the Applicant ought to have been in prison for four months. The Report by Fredrick Otieno Probation/Community Service Officer that was filed on 29/7/2022, it has not recommended the Applicant’s release on community service order as he was a foreigner. However, bearing in mind that he had already served four and a half (4½ ) years in custody, he had already finished his sentence, it is hereby directed that the Applicant be and is hereby released from custody forthwith unless he be held or any other lawful cause. Orders accordingly.
DATED AND DELIVERED AT BUSIA ON THIS 1ST DAY OF AUGUST 2022. J. KAMAUJUDGE