[2022] KEHC 14809 (KLR)
The court found that the default sentences imposed on the appellants for non-payment of fines were unlawful because they exceeded the statutory maximum of six months imprisonment per count as stipulated by section 28(2) of the Penal Code. The trial court had imposed default sentences of two years and twenty months...
Source-derived case information.
- Citation
- [2022] KEHC 14809 (KLR)
- Parties
- Appellant: Peter Waweru Ng’ang’a; Appellant: Richard Gitonga Wairimu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E026 of 2022
- Procedural Posture
- Criminal Appeal / Appeal From Sentence Only
- Outcome
- appeal_partially_allowed
- Judges
- HPG Waweru
- Legal Topics
- Sentencing Principles, Default Sentences, Stock Theft, Penal Code Section 278
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Waweru Ng’ang’a
Appellant
Richard Gitonga Wairimu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Sentence Only
Legal Issues
- 1 Whether the default sentences imposed upon the appellants for non-payment of fines exceeded the lawful maximum under section 28(2) of the Penal Code.
- 2 Whether the cumulative default sentence should be reduced to comply with statutory limits.
Ratio Decidendi
The court found that the default sentences imposed on the appellants for non-payment of fines were unlawful because they exceeded the statutory maximum of six months imprisonment per count as stipulated by section 28(2) of the Penal Code. The trial court had imposed default sentences of two years and twenty months for the respective counts, resulting in a cumulative default sentence of 64 months, which was not permitted by law. The High Court therefore set aside the unlawful default sentences and substituted them with the lawful maximum of six months imprisonment per count, resulting in a cumulative default sentence of 18 months for the three counts. The appeals were partially allowed to...
Court Disposition
appeal_partially_allowed
Orders
- The default sentences imposed upon each appellant are set aside.
- Each appellant is to serve a default sentence of six months imprisonment per count, totaling 18 months for the three counts.
Full Case Text
Judgment text and source record
27 paragraphs
Ng’ang’a & another v Republic (Criminal Appeal E026 of 2022 & E073 of 2021 (Consolidated)) [2022] KEHC 14809 (KLR) (3 November 2022) (Judgment)
Neutral citation: [2022] KEHC 14809 (KLR)
Republic of Kenya
In the High Court at Nanyuki
Criminal Appeal E026 of 2022 & E073 of 2021 (Consolidated)
HPG Waweru, J
November 3, 2022
Between
Peter Waweru Ng’ang’a
Appellant
and
Republic
Respondent
As consolidated with
Criminal Appeal E073 of 2021
Between
Richard Gitonga Wairimu
Appellant
and
Republic
Respondent
(Appeal from Sentence only dated 06/05/2021 in Nanyuki CM Criminal Case NO.E102 of 2021 – Hon L Mutai, CM)
Judgment
1. The appellants herein, Peter Waweru Ng’ang’a and Richard Gitonga Wairimu, were convicted upon their own plea of three counts of stealing stock contrary to section 278 of the Penal Code. In count I they were each fined KShs 40,000. 00 and in default to serve 2 years imprisonment. In counts II and III they were each fined KShs 20,000. 00 and in default to serve 20 months imprisonment. They did not pay the fine, and each is therefore serving a cumulative default sentence of 64 months (that is 5 years and 4 months). They have appealed against sentence only, particularly the default sentences.
2. The default sentences are clearly unlawful, and should not have been more than six (6) months imprisonment for a fine exceeding KShs 15,000. 00. See section 28(2) of the Penal Code. Each appellant therefore should be serving a cumulative default sentence of eighteen (18) months imprisonment.
3. I will in the event partially allow these appeals by setting aside the default sentences meted out to each appellant and substituting therefor a default sentence of six (6) months imprisonment in each count (a cumulative sentence of 18 months imprisonment for the three counts). It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 2ND DAY OF NOVEMBER 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 3RD DAY OF NOVEMBER