[2020] KEHC 2454 (KLR)
The court found that the default sentence of two years imprisonment imposed for failure to pay a fine of KShs 200,000 was unlawful because section 28(2) of the Penal Code expressly limits the default term for fines exceeding KShs 50,000 to a maximum of 12 months. The trial court's imposition of a two-year default...
Source-derived case information.
- Citation
- [2020] KEHC 2454 (KLR)
- Parties
- Appellant: Sami Lesilele; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 112 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_partially_allowed
- Judges
- DW Mbuteti
- Legal Topics
- Wildlife Offences, Sentencing Principles, Default Sentences, Penal Code Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sami Lesilele
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the default sentence of two years imprisonment for failure to pay a fine of KShs 200,000 imposed under section 102(1)(a) of the Wildlife Conservation and Management Act was lawful.
- 2 Whether the sentence contravened section 28(2) of the Penal Code.
Ratio Decidendi
The court found that the default sentence of two years imprisonment imposed for failure to pay a fine of KShs 200,000 was unlawful because section 28(2) of the Penal Code expressly limits the default term for fines exceeding KShs 50,000 to a maximum of 12 months. The trial court's imposition of a two-year default sentence therefore contravened the statutory provision. The High Court set aside the unlawful default sentence and substituted it with a lawful term of 12 months imprisonment, which the appellant had already served. Consequently, the appellant was ordered to be released unless otherwise lawfully held.
Court Disposition
appeal_partially_allowed
Orders
- The default sentence of two years imprisonment in count one is set aside and substituted with 12 months imprisonment.
- The appellant having served the substituted sentence is to be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL APPEAL NO 112 OF 2017
SAMI LESILELE.......APPELLANT
VERSUS
REPUBLIC............RESPONDENT
(Appeal from original Sentence dated 02/10/2017 in Nanyuki CM Criminal Case No 1611 of 2017 – E Ngigi, SRM)
J U D G M E N T
1. The Appellant herein, SAMI LESILELE, was convicted upon his own plea of two offences under the Wildlife Conservation and Management Act, 2013. The first count was trespass upon a national reservecontrarytosection 102(1) (a)of the Act. For this offence he was sentenced to a fine of KShs 200,000/00 and in default of payment to serve two (2) years imprisonment.
2. The offence in the second count was illegal grazing in a national reservecontrarytosection102(2) & (3) of the Act for which he was sentenced to a fine of KShs 50,000/00 and in default of payment to serve three (3) months imprisonment. The default sentences would of course run consecutively in light of the proviso to section 37 of the Penal Code.
3. The Appellant appealed only against the default sentence in count one. He was sentenced by the trial court on 02/10/2017. When this court heard his appeal he had been in prison for one (1) year and nearly five (5) months serving sentence. I immediately partially allowed his appeal against sentence be setting aside the default sentence in count one and substituting therefore 12 months imprisonment. That meant that the Appellant had already served the default sentences in both counts, and I directed that he be set at liberty forthwith unless otherwise lawfully held. I will now give the reason for partially allowing the appeal against sentence.
4. Under section 28(2) of the Penal Code, a fine exceeding KShs 50,000/00 should not attract a default term of imprisonment exceeding 12 months. The default term of imprisonment of two (2) years imposed upon the Appellant in count one was thus unlawful. That is why I set it aside and substituted therefore 12 months imprisonment.
DATED AND SIGNED AT NANYUKI THIS 29TH DAY OF SEPTEMBER 2020
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 8TH DAY OF OCTOBER 2020