[2024] KEHC 10911 (KLR)
The trial court imposed a default custodial sentence of five years for non-payment of a fine of Kshs. 1,500,000, which contravenes Section 28(2) of the Penal Code limiting such default sentences to a maximum of 12 months where the fine exceeds Kshs. 50,000. This rendered the sentence illegal and necessitated its...
Source-derived case information.
- Citation
- [2024] KEHC 10911 (KLR)
- Parties
- Applicant: Jane Wawira Ndege; Applicant: Nancy Truphena Otanga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 234 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Sentence Revision and Eligibility for Non Custodial Sentence
- Outcome
- sentence revised; applicants placed on community service orders
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Irregularity, Wildlife Offences, Non Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wawira Ndege
Applicant
Nancy Truphena Otanga
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Revision and Eligibility for Non Custodial Sentence
Legal Issues
- 1 Whether the default custodial sentence imposed by the trial court for non-payment of fine exceeded the statutory maximum under Section 28(2) of the Penal Code.
- 2 Whether the applicants are eligible for non-custodial sentences under the Chief Justice's decongestion memo.
Ratio Decidendi
The trial court imposed a default custodial sentence of five years for non-payment of a fine of Kshs. 1,500,000, which contravenes Section 28(2) of the Penal Code limiting such default sentences to a maximum of 12 months where the fine exceeds Kshs. 50,000. This rendered the sentence illegal and necessitated its revision. Additionally, the court considered the Chief Justice's decongestion memo and the positive probation reports for both applicants, which indicated remorse and readiness for rehabilitation. The court found both applicants suitable for non-custodial sentences and substituted the custodial sentence with community service orders for twelve months each at designated institutions.
Court Disposition
sentence revised; applicants placed on community service orders
Orders
- The sentence of a fine of Kshs. 1,500,000 in default to serve 5 years imprisonment is substituted with a fine of Kshs. 1,500,000 in default to serve 1-year imprisonment.
- Jane Wawira Ndege shall be placed on community service for twelve months at Mama Lucy Kibaki Hospital under the supervision of the Nurse in Charge.
Full Case Text
Judgment text and source record
27 paragraphs
Ndege & another v Republic (Criminal Revision 234 of 2024) [2024] KEHC 10911 (KLR) (17 September 2024) (Ruling)
Neutral citation: [2024] KEHC 10911 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 234 of 2024
DR Kavedza, J
September 17, 2024
Between
Jane Wawira Ndege
1st Applicant
Nancy Truphena Otanga
2nd Applicant
and
Republic
Respondent
Ruling
1. This file was brought before me for the decongestion exercise pursuant to the Chief Justice’s memo dated 7/12/2022, which provides that inmates who are serving three (3) years imprisonment or less, or those serving long sentences but have a balance of three (3) years or less may be considered for non-custodial sentences.
2. I have gone through the file and noted that Applicants were jointly convicted by the trial court for the offence of dealing in wildlife trophy without a permit contrary to section 95 of the Wildlife Conservation and Management Act, 2013 (the Act). They were both sentenced to pay a fine of Kshs. 1,500,000/=, in default to serve 5 years imprisonment.
3. At the onset, it is noteworthy that in the present case, the trial court opted to impose fines rather than imprisonment. In that case, the learned trial magistrate ought to have imposed the default sentences pursuant to Section 28(2) of the Penal Code. Under the provision, where the fine imposed exceeds Kshs. 50,000/= the default sentence must not exceed 12 months imprisonment. It follows then that the sentences imposed against the Applicants herein was illegal, which represents an irregularity on the sentences.
4. Therefore, the sentence of a fine of Kshs. 1, 500,000/= in default to serve 5 years imprisonment is substituted with a fine of Kshs. 1,500,000 in default to serve 1-year imprisonment.
5. I shall now turn back to determining whether the Applicants are eligible for a non-custodial sentence.
6. Two Probation Reports were filed with respect to both Applicants.
7. For the 1st Applicant, her report indicates that she has been receptive to rehabilitation programs and is ready to serve a non-custodial sentence. She is remorseful and deeply regrets her actions. The findings in the probation report are in favour of the 1st applicant to serve a non-custodial sentence.
8. Similar findings were recorded in the Probation Report with respect to the 2nd Applicant.
9. I therefore find that both Applicants are suitable to serve a non-custodial sentence and order as follows:I.The 1st Applicant, Jane Wawira Ndege, shall be placed on community service for twelve (12) months at Mama Lucy Kibaki Hospital, under the supervision of the Nurse in Charge.II. The 2nd Applicant, Nancy Truphena Otanga, shall be placed on community service for twelve (12) months at Saika Chief’s Office, under the supervision of Saika Location Chief.
10. File closed.Orders accordingly.
RULING DELIVERED THIS 17TH DAY OF SEPTEMBER 2024. D. KAVEDZAJUDGE