[2022] KEHC 10947 (KLR)
The court found that the default sentence of two years imprisonment imposed by the trial magistrate for failure to pay a fine of KES 50,000 was unlawful and without legal basis, as section 28(2) of the Penal Code prescribes a maximum default sentence of one year for such fines. The court also held that the period...
Source-derived case information.
- Citation
- [2022] KEHC 10947 (KLR)
- Parties
- Applicant: Albert Ochieng Ooko; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E048 of 2022
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- sentence varied; applicant to complete sentence in custody up to 12/8/2022
- Judges
- JN Kamau
- Legal Topics
- Sentencing Procedure, Default Sentence, Stealing Offence, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albert Ochieng Ooko
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the default sentence of two years imprisonment imposed for failure to pay a fine of KES 50,000 was lawful under the Penal Code.
- 2 Whether the applicant is entitled to have the period spent in custody considered in the computation of his sentence under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the default sentence of two years imprisonment imposed by the trial magistrate for failure to pay a fine of KES 50,000 was unlawful and without legal basis, as section 28(2) of the Penal Code prescribes a maximum default sentence of one year for such fines. The court also held that the period the applicant spent in custody prior to sentencing must be considered in determining the completion of his sentence, in accordance with section 333(2) of the Criminal Procedure Code. Consequently, the court directed that the applicant complete his sentence up to 12/8/2022 in custody, correcting the illegality in the original sentencing order.
Court Disposition
sentence varied; applicant to complete sentence in custody up to 12/8/2022
Orders
- The applicant shall complete his sentence up to 12/8/2022 in custody.
- The default sentence of two years imprisonment imposed by the trial magistrate is set aside as unlawful.
Full Case Text
Judgment text and source record
16 paragraphs
Ooko v Republic (Criminal Revision E048 of 2022) [2022] KEHC 10947 (KLR) (2 August 2022) (Ruling)
Neutral citation: [2022] KEHC 10947 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Revision E048 of 2022
JN Kamau, J
August 2, 2022
Between
Albert Ochieng Ooko
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged with stealing contrary to section 275 of the Penal Codecap 63 (Laws of Kenya). He was convicted and fined ksh.50,000/= or in default to serve two (2) years imprisonment on 8/3/2022. His early date of release as per Prison is 10/6/2022. He has spent five (5) months twenty nine (29) days in prsion. The Report of Dennis Kiptanui Probation Officer dated 25/7/2022 does not recommend the release on a non-custodial sentence due to his safety as he was almost killed when the offence occurred and the Community is still very hostile. According to section 28 (2) of the Penal Code, a fine exceeding ksh.15,000/= but not exceeding ksh.50,000/= attracts a default imprisonment of one (1) year. The default sentence of two (2) years that was imposed by the Learned Trial Magistrate was unlawful, illegal and without legal basis. The applicant ought to complete his sentence on 2/8/2022 having taken into account the period from the date was arrested and the date he was sentenced in line with section 333 (2) of the Criminal Procedure Code cap 75 (Laws of Kenya). It is hereby directed that the applicant completes his sentence up to 12/8/2022 in custody.Orders accordingly.
DATED AND DELIVERED AT BUSIA ON THIS 2ND DAY OF AUGUST 2022. J. KAMAUJUDGE