[2024] KEHC 3338 (KLR)
The trial court imposed a default custodial sentence of two years upon failure to pay a fine of Kshs. 30,000 for the offence of stealing. However, Section 28(2) of the Penal Code provides that where a fine imposed exceeds Ksh. 15,000 but does not exceed Ksh. 50,000, the default sentence should not exceed six months....
Source-derived case information.
- Citation
- [2024] KEHC 3338 (KLR)
- Parties
- Applicant: Allan Ngachi alias Sam; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 89 of 2024
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- sentence set aside and substituted
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Illegality, Default Sentences, Stealing Offence, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Allan Ngachi alias Sam
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the default sentence imposed by the trial court upon failure to pay a fine for the offence of stealing was lawful under the Penal Code.
- 2 Whether the sentence should be set aside and substituted with a lawful sentence.
Ratio Decidendi
The trial court imposed a default custodial sentence of two years upon failure to pay a fine of Kshs. 30,000 for the offence of stealing. However, Section 28(2) of the Penal Code provides that where a fine imposed exceeds Ksh. 15,000 but does not exceed Ksh. 50,000, the default sentence should not exceed six months. The sentence imposed by the trial court was therefore illegal and constituted an irregularity. The High Court set aside the illegal sentence and substituted it with a lawful sentence: a fine of Kshs. 30,000, in default to serve six months imprisonment.
Court Disposition
sentence set aside and substituted
Orders
- The sentence imposed by the trial court is set aside.
- The applicant is sentenced to a fine of Kshs. 30,000/=, in default to serve six (6) months imprisonment.
Full Case Text
Judgment text and source record
20 paragraphs
Ngachi v Republic (Criminal Revision 89 of 2024) [2024] KEHC 3338 (KLR) (4 April 2024) (Ruling)
Neutral citation: [2024] KEHC 3338 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 89 of 2024
DR Kavedza, J
April 4, 2024
Between
Allan Ngachi alias Sam
Applicant
and
Republic
Respondent
Ruling
1. The applicant was convicted on his own plea of guilty for the offence of stealing contrary to section 268 (1) as read with section 275 of the Penal Code. He was sentenced to pay a fine of Kshs. 30,000/= and in default to serve two (2) years imprisonment.
2. Under Section 275 of the Penal Code, any person convicted for the offence of stealing is liable to imprisonment for 3 years. In the present case though, the trial court opted to impose fines. 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 Ksh. 15,000 but does not exceed Sh.50,000, the default sentence should not exceed 6 months.
3. It follows then that the sentence imposed was illegal, which represents an irregularity.
4. The sentence imposed by the trial court is therefore set aside and substituted with a fine of Kshs. 30,000/=, in default to serve six (6) months imprisonment.
Orders accordingly.
RULING DELIVERED THIS DAY 4TH DAY OF APRIL 2024. ________________D. KAVEDZAJUDGE