[2022] KEHC 10974 (KLR)
The court found that the default custodial sentence of one year imposed by the trial court for non-payment of a Kshs. 20,000 fine was unlawful, as section 28(2) of the Penal Code limits the default sentence to six months for fines between Kshs. 15,000 and Kshs. 50,000. Since the applicant had already completed his...
Source-derived case information.
- Citation
- [2022] KEHC 10974 (KLR)
- Parties
- Applicant: Paul Oteba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E057 of 2022
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application allowed
- Judges
- JN Kamau
- Legal Topics
- Sentencing, Default Sentence, Assault Causing Actual Bodily Harm, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Oteba
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the default custodial sentence imposed for non-payment of fine was lawful under section 28(2) of the Penal Code.
- 2 Whether the applicant was entitled to release given the sentence served.
Ratio Decidendi
The court found that the default custodial sentence of one year imposed by the trial court for non-payment of a Kshs. 20,000 fine was unlawful, as section 28(2) of the Penal Code limits the default sentence to six months for fines between Kshs. 15,000 and Kshs. 50,000. Since the applicant had already completed his sentence, the court ordered his immediate release unless held for other lawful cause.
Court Disposition
application allowed
Orders
- The applicant is released from custody forthwith unless held for other lawful cause.
Full Case Text
Judgment text and source record
16 paragraphs
Oteba v Republic (Criminal Revision E057 of 2022) [2022] KEHC 10974 (KLR) (1 August 2022) (Ruling)
Neutral citation: [2022] KEHC 10974 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Revision E057 of 2022
JN Kamau, J
August 1, 2022
Between
Paul Oteba
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Codecap 63 (Laws of Kenya). He was arrested on 16/12/2021. He pleaded guilty to the charge and was fined ksh.20,000/= or one (1) year in default on 20/12/2022. The Report for sentence Review by Joyce Ochieng Odhiambo, Probation Community Officer filed in court on 29/7/2022 recommends that the applicant is suitable to serve Community Service Orders at Angurai Primary School. His earliest release period indicated by the Prisons is 20/12/2021. The court takes the view that the default sentence that was imposed by the trial court was illegal and unlawful. According to section 28 (2) of the Penal Code provides that the default sentence of a fine exceeding kshs.15,000/= but not exceeding kshs.50,000/= shall be six (6) months imprisonment. As the applicant has already completed his sentence, it is hereby directed that the applicant be and is hereby released from custody forthwith unless he be held for other lawful cause. Orders accordingly.
DATED AND DELIVERED AT BUSIA ON THIS 1ST DAY OF AUGUST 2022J. KAMAUJUDGE