[2022] KEHC 10870 (KLR)
The court found that the default sentence of one year imprisonment imposed by the trial magistrate for failure to pay a fine of Ksh. 20,000 was unlawful and without legal basis, as Section 28(2) of the Penal Code prescribes a maximum of six months for such default. However, the court declined to review the...
Source-derived case information.
- Citation
- [2022] KEHC 10870 (KLR)
- Parties
- Applicant: Kevin Simiyu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E063 of 2022
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- Application for revision partially allowed; default sentence corrected to six months; remainder of sentence to be served with credit for pre-sentence custody.
- Judges
- JN Kamau
- Legal Topics
- Sentencing Illegality, Default Sentence, Stock Theft, Fine in Lieu of Imprisonment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kevin Simiyu
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the default sentence of one year imprisonment imposed for failure to pay a fine of Ksh. 20,000 was lawful under the Penal Code.
- 2 Whether the applicant is entitled to a review of his sentence in light of the illegality of the default sentence.
Ratio Decidendi
The court found that the default sentence of one year imprisonment imposed by the trial magistrate for failure to pay a fine of Ksh. 20,000 was unlawful and without legal basis, as Section 28(2) of the Penal Code prescribes a maximum of six months for such default. However, the court declined to review the applicant's sentence to a non-custodial one due to lack of information about his family or place of abode, as highlighted in the probation officer's report. The court directed that the applicant serve the remainder of his sentence, with the period spent in custody before sentencing to be considered in accordance with Section 333(2) of the Criminal Procedure Code.
Court Disposition
Application for revision partially allowed; default sentence corrected to six months; remainder of sentence to be served with credit for pre-sentence custody.
Orders
- The default sentence of one year imprisonment is set aside and substituted with six months as per Section 28(2) of the Penal Code.
- The applicant shall serve the remainder of his sentence, with credit for time spent in custody between arrest and sentencing in accordance with Section 333(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
17 paragraphs
Simiyu v Republic (Criminal Revision E063 of 2022) [2022] KEHC 10870 (KLR) (2 August 2022) (Ruling)
Neutral citation: [2022] KEHC 10870 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Revision E063 of 2022
JN Kamau, J
August 2, 2022
ORIGINALLY CR CASE NO E341 OF 2022
Between
Kevin Simiyu
Applicant
and
Republic
Respondent
Ruling
1. The Applicant was charged with the offence of Stealing Stock contrary to Section 278 of the Penal Code Cap 63 (Laws of Kenya). He was also charged with the alternative charge of handling stolen stock contrary to Section 322 (2) of the Penal Code. He pleaded guilty to the charge. There was no indication if he was convicted as those proceedings were not in the file. However, he was fined ksh.20,000/= and in default to serve one (1) year imprisonment on 8/5/2022. According to the Report of Ezekiel Wesonga Probation/Community Service Officer, did not recommend the release of the Applicant on a non-custodial sentence for the reason that his family was not well known in the area. Section 28 (2) of the Penal Code provides that where the fine exceeds ksh.15,000/= but does not exceed ksh.50,000/= the default imprisonment is six (6) months. The default sentence of one (1) year imprisonment that was imposed by the Learned Trial Magistrate was unlawful, illegal and had no legal basis. Taking into account the remission of the sentence of six (6) months, the Applicant’s sentence is ending in September 2022 and not the early date of release given by the Prisons on 18/1/2023 which was based on the illegal sentence of one (1) year imprisonment. As he did not disclose information about his family or place abode, this court was not persuaded that it should review his sentence. It is hereby directed that the Applicant serves the remainder of his sentence noting to take into account the days between his date of arrest and date of sentencing in line with Section 333 (2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). Orders accordingly.
DATED AND DELIVERED AT BUSIA ON THIS 2ND DAY OF AUGUST 2022. J. KAMAUJUDGE