[2020] KEHC 6865 (KLR)
The trial court imposed a default sentence of ten months' imprisonment for each of two offences upon the applicant's failure to pay fines of Kshs.10,000 per count. Section 28(2) of the Penal Code limits the default sentence for a fine of Kshs.10,000 to a maximum of three months' imprisonment. The court found that...
Source-derived case information.
- Citation
- [2020] KEHC 6865 (KLR)
- Parties
- Applicant: Sospherter Kangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 28 of 2020
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- Revision allowed. Default sentences set aside and substituted. Applicant to be released unless otherwise lawfully held.
- Legal Topics
- Malicious Damage to Property, Stealing, Sentencing, Default Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sospherter Kangi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the default sentence imposed for non-payment of the fine was lawful under Section 28(2) of the Penal Code.
- 2 Whether the cumulative default sentence exceeded the statutory maximum.
Ratio Decidendi
The trial court imposed a default sentence of ten months' imprisonment for each of two offences upon the applicant's failure to pay fines of Kshs.10,000 per count. Section 28(2) of the Penal Code limits the default sentence for a fine of Kshs.10,000 to a maximum of three months' imprisonment. The court found that the default sentences imposed were illegal as they exceeded the statutory maximum. The High Court therefore set aside the illegal default sentences and substituted them with lawful sentences of three months' imprisonment per count, to run cumulatively. As the applicant had already served the cumulative six months' imprisonment, he was ordered to be released unless otherwise...
Court Disposition
Revision allowed. Default sentences set aside and substituted. Applicant to be released unless otherwise lawfully held.
Orders
- The default sentence of ten months' imprisonment on each count is set aside and substituted with three months' imprisonment on each count.
- The default sentences are to run cumulatively, totaling six months' imprisonment.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL REVISION NO.28 OF 2020
SOSPHETER KANGI........APPLICANT
VERSUS
REPUBLIC.......................RESPONDENT
(Revision of the Original Sentence dated 14. 08. 19 in Nanyuki Criminal Case No.993 of 2019 – L. Mutai, CM)
08. 04. 2020
Before Justice H P G Waweru
In Chambers
ORDER ON REVISION
1. I have examined the record of the trial court.
2. The convict herein, SOSPHERTER KANGI, was on 14. 08. 19 fined Kshs.10,000= and in default to serve ten (10) months on each of two offences of Malicious Damage to Property contrary to Section 339(1) and Stealing contrary to Section 268(1) and 275 all of the Penal Code. He did not pay the fines.
3. The default sentences are obviously illegal in view of the provisions of Section 28(2) of the Penal Code. The default sentence for a fine of Kshs.10,000= should not be more than three (3) months imprisonment.
4. In the circumstances, I hereby set aside the default sentence of ten (1) Months imprisonment on each count and substitute therefore three (3) months imprisonment – a cumulative six (6) months imprisonment as default sentences must be served cumulatively.
5. As the convict has already served the cumulative sentence of six (6) months imprisonment, he shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AT NANYUKI THIS 8TH DAY OF APRIL, 2020
H.P.G. WAWERU
JUDGE.
DEPUTY REGISTRAR
NANYUKI HIGH COURT