[2015] KEHC 2822 (KLR)
The court found that the default sentence of five years imprisonment imposed on the applicant for non-payment of a Kshs. 100,000 fine was illegal, as it exceeded the statutory maximum of twelve months for default sentences under section 28(2) of the Penal Code. The court further considered the period of three months...
Source-derived case information.
- Citation
- [2015] KEHC 2822 (KLR)
- Parties
- Respondent: Republic; Applicant: Benard Kioko Muia
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 24 of 2015
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- sentence revised; applicant released
- Judges
- BT Jaden
- Legal Topics
- Sentencing Illegality, Possession of Alcoholic Drinks, Default Sentences, Penal Code Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Benard Kioko Muia
Applicant
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the default sentence of five years imprisonment for non-payment of fine was lawful under the Penal Code.
- 2 Whether the sentence imposed exceeded the statutory maximum for default sentences.
Ratio Decidendi
The court found that the default sentence of five years imprisonment imposed on the applicant for non-payment of a Kshs. 100,000 fine was illegal, as it exceeded the statutory maximum of twelve months for default sentences under section 28(2) of the Penal Code. The court further considered the period of three months already served by the applicant and, taking into account mitigation, reduced the sentence to the period already served, thereby ordering the applicant's release.
Court Disposition
sentence revised; applicant released
Orders
- The sentence is reduced to the period already served.
- The applicant shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL REVISION NO. 24 OF 2015
REPUBLIC
VERSUS
BENARD KIOKO MUIA ………………..……………..……….. APPLICANT
RULING ON REVISION
The SRMC Tawa Criminal Case No. 382/14 - Republic versus Bernard Kioko Muia was referred to the High Court for revision by the Ag. SRM Tawa Law Courts.
The Accused was charged with the offence of being in possession of alcoholic drinks contrary to section 27 (1) (b) as read with sub section 4 of the Alcoholic Drinks Control Act 2010.
The particulars of the offence were that on the 18th day of November 2014 at Kathini village, Kisau Location in Mbooni East District within Makueni County was found being in possession of alcoholic drinks namelyKarubu to wit 20 litres without a licence.
The Accused pleaded guilty and was convicted and sentenced to a fine of Kshs.100,000/= in default five years imprisonment.
The default sentence is illegal. The default sentence should not have exceeded one year. Section 28 (2) of the Penal Code provides as follows:
“In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under theDetention Camps Actordered by a court in respect of the non-payment of any sum adjudged to be paid for costs undersection 32or compensation undersection 31or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale-
Amount Maximum Period
Not exceeding Sh.500 … … .. 14 days
Exceeding Sh.500 but not
exceeding Sh.2,500 … … … 1 month
Exceeding Sh.2,500 but not exceeding 3 months
Sh.15,000 … … …
Exceeding Sh. 15,000 but not exceeding
Sh. 50,000 … … …..
Exceeding Sh.50,000 12 months.”
Taking into account the mitigation and the period of three months already served, I reduce the sentence to the period already served.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 17th day of February 2015.
………………………………………
B. THURANIRA JADEN
JUDGE