[2015] KEHC 6159 (KLR)
The court found that the default sentence of three years' imprisonment for non-payment of a Kshs. 50,000 fine was illegal, as section 28(2) of the Penal Code limits the default imprisonment for such an amount to a maximum of twelve months. The court further considered the period of three months already served by the...
Source-derived case information.
- Citation
- [2015] KEHC 6159 (KLR)
- Parties
- Respondent: Republic; Applicant: Benard Kioko Muia
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 3 of 2015
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- sentence revised; applicant released if not otherwise lawfully held
- Judges
- BT Jaden
- Legal Topics
- Sentencing Illegality, Alcoholic Drinks Control, Default Sentence Limits
- 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 imposed for non-payment of fine exceeded the statutory maximum period allowed.
- 2 Whether the sentence should be revised in light of the period already served.
Ratio Decidendi
The court found that the default sentence of three years' imprisonment for non-payment of a Kshs. 50,000 fine was illegal, as section 28(2) of the Penal Code limits the default imprisonment for such an amount to a maximum of twelve months. 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 if not otherwise lawfully held.
Court Disposition
sentence revised; applicant released if not otherwise lawfully held
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. 3 OF 2015
REPUBLIC
VERSUS
BENARD KIOKO MUIA …………….. APPLICANT
RULING ON REVISION
The SRMC Tawa Criminal Case No. 226/12- 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 10th day of July 2012 at Kitandini village, Kalimani Location in Mbooni East within Makueni County was found being in possession of alcoholic drinks namely Karubu to wit 20 litres without a licence.
The Accused pleaded guilty and was convicted and sentenced to a fine of Kshs.50,000/= in default three 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 12thday of February 2015.
………………………………………
B. THURANIRA JADEN
JUDGE