[2024] KEHC 1945 (KLR)
The court found that the trial magistrate erred by imposing a default custodial sentence of 2 years for failure to pay a fine of Kshs. 200,000, contrary to Section 28(2) of the Penal Code, which limits the default sentence to a maximum of 12 months where the fine exceeds Kshs. 50,000. The sentence was therefore...
Source-derived case information.
- Citation
- [2024] KEHC 1945 (KLR)
- Parties
- Applicant: Stanley Ochieng Okello; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 93 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Sentence Review
- Outcome
- sentence revised
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Irregularity, Default Sentence, Stealing Offence, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanley Ochieng Okello
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Review
Legal Issues
- 1 Whether the default custodial sentence imposed for failure to pay a fine exceeded the statutory maximum under the Penal Code.
- 2 Whether the sentence imposed by the trial court was illegal and required revision.
Ratio Decidendi
The court found that the trial magistrate erred by imposing a default custodial sentence of 2 years for failure to pay a fine of Kshs. 200,000, contrary to Section 28(2) of the Penal Code, which limits the default sentence to a maximum of 12 months where the fine exceeds Kshs. 50,000. The sentence was therefore illegal and constituted an irregularity. The court exercised its revisionary jurisdiction to substitute the default sentence with the lawful maximum of 1 year imprisonment, upholding the fine but correcting the custodial aspect to comply with statutory requirements.
Court Disposition
sentence revised
Orders
- The sentence of a fine of Kshs. 200,000 in default to serve 2 years imprisonment is substituted with a fine of Kshs. 200,000 in default to serve 1-year imprisonment.
Full Case Text
Judgment text and source record
19 paragraphs
Okello v Republic (Criminal Revision 93 of 2023) [2024] KEHC 1945 (KLR) (28 February 2024) (Ruling)
Neutral citation: [2024] KEHC 1945 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 93 of 2023
DR Kavedza, J
February 28, 2024
Between
Stanley Ochieng Okello
Applicant
and
Republic
Respondent
Ruling
1. The applicant filed a notice of motion dated 30th November 2023 supported by the affidavit sworn by the applicant. He prayed that the sentence imposed be reviewed.
2. From the record, the applicant was charged and convicted for the offence of stealing contrary to section 268 (1) of the Penal Code. He was sentenced to pay a fine of Ksh. 200,000 in default to serve 2 years imprisonment.
3. I have considered the application. 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 Kshs. 50,000/= the default sentence must not exceed 12 months imprisonment. It follows then that the sentences imposed was illegal which represents an irregularity on the sentences.
4. In the end, the sentence of a fine of Kshs. 200,000 in default to serve 2 years imprisonment is substituted with a fine of Kshs. 200,000 in default to serve 1-year imprisonment.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 28TH DAY OF FEBRUARY 2024. _____________D. KAVEDZAJUDGE