[2022] KEHC 11052 (KLR)
The court found that the default sentence of one year imprisonment imposed on the applicant for failure to pay a fine of Kshs. 20,000 was unlawful, as Section 28(2) of the Penal Code limits the default custodial sentence to six months for fines between Kshs. 15,000 and Kshs. 50,000. The applicant had already served...
Source-derived case information.
- Citation
- [2022] KEHC 11052 (KLR)
- Parties
- Applicant: Abubakar Owino; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E077 of 2022
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application allowed
- Judges
- JN Kamau
- Legal Topics
- Sentencing Illegality, Default Sentence, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abubakar Owino
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the default sentence of one year imprisonment for failure to pay a fine of Kshs. 20,000 was lawful under the Penal Code.
- 2 Whether the applicant had already served the lawful sentence as per the Penal Code provisions.
Ratio Decidendi
The court found that the default sentence of one year imprisonment imposed on the applicant for failure to pay a fine of Kshs. 20,000 was unlawful, as Section 28(2) of the Penal Code limits the default custodial sentence to six months for fines between Kshs. 15,000 and Kshs. 50,000. The applicant had already served four and a half months in prison, which exceeded the lawful default sentence after accounting for remission. Therefore, the applicant had completed his sentence and was entitled to immediate release unless held for another lawful cause.
Court Disposition
application allowed
Orders
- The applicant is to be released from custody forthwith unless held for any other lawful cause.
Full Case Text
Judgment text and source record
17 paragraphs
Owino v Republic (Criminal Revision E077 of 2022) [2022] KEHC 11052 (KLR) (1 August 2022) (Ruling)
Neutral citation: [2022] KEHC 11052 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Revision E077 of 2022
JN Kamau, J
August 1, 2022
ORIGINALLY CR CASE NO E066 OF 2022
Between
Abubakar Owino
Applicant
and
Republic
Respondent
Ruling
1. The Applicant was charged with the offence of stealing contrary to Section 268 as read with Section 275 of the Penal Code Cap 63 (Laws of Kenya). He had also been charged with an alternative charge of handling stolen property contrary to Section 322 (1) (2) of the Penal Code. He was arrested on 15/1/2022 and arraigned in Court where he denied the charges. He admitted to the facts on 1/3/2022 and was fined Kshs. 20,000/- or in default to serve one (1) year imprisonment on 15/3/2022. The sentence was to run from the date of arrest. He has so far served four and a half (4 ½) months in prison. According to the Report of Abdirashid Osman Probation/Community Service Officer field on 29/7/2022, it has not recommended the release of the Applicant because he is a foreigner. Notably, Section 28 (2) of the Penal Code provides that where a fine exceeds Kshs. 15,000/- but does not exceed Kshs. 50,000/- default sentence in prison is six (6) months. The sentence of one (1) year imprisonment was therefore unlawful, had no legal basis in law and was illegal. Taking into account the remission of six (6) months imprisonment the Applicant ought to have served four (4) months in prison. As he has already served four and a half (4 ½ ) months, he has already completed his sentence. It is hereby directed that he be released from custody forthwith unless he be held for any other lawful cause.Orders accordingly.
DATED AND DELIVERED AT BUSIA ON THIS 1ST DAY OF AUGUST 2022. J. KAMAUJUDGE