[2003] KEHC 912 (KLR)
The court found that the sentence imposed on the appellant—2 years imprisonment in default of a 20,000/- fine—exceeded the maximum period permitted by section 28 of the Penal Code, which limits such imprisonment to not more than 12 months. Since the appellant had already served about 11 months, he had effectively...
Source-derived case information.
- Citation
- [2003] KEHC 912 (KLR)
- Parties
- Appellant: Thomas Mikwa Kongoi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 603 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Legal Topics
- Sentencing Illegality, Assault Causing Actual Bodily Harm, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Mikwa Kongoi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant exceeded the statutory maximum allowed under section 28 of the Penal Code.
- 2 Whether the appellant was illegally held beyond the lawful sentence period.
Ratio Decidendi
The court found that the sentence imposed on the appellant—2 years imprisonment in default of a 20,000/- fine—exceeded the maximum period permitted by section 28 of the Penal Code, which limits such imprisonment to not more than 12 months. Since the appellant had already served about 11 months, he had effectively completed the lawful sentence. The court held that the continued detention of the appellant was illegal and ordered his immediate release unless otherwise lawfully held.
Court Disposition
appeal_allowed_in_part
Orders
- The original sentence is reduced to a maximum of 12 months imprisonment.
- The appellant is deemed to have served the full sentence.
Full Case Text
Judgment text and source record
7 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBICRIMINAL DIVISIONCRIMINAL APPEAL NO. 603 OF 2002 (From Original Conviction and sentence in criminal case no. 3891 of 2002 of the S.P.M. court at Kibera
THOMAS MIKWA KONGOI ……………………………… APPLICANT VERSUS REPUBLIC ………………………………………………RESPONDENT
JUDGMENT
The appellant was convicted of assault causing actual bodily harm contrary to section 251 of the Penal Code. He was convicted and sentenced to 20,000/- fine or 2 years imprisonment. He has served about 11 months. He appeals on sentence since he had pleaded guilty at the lower court. Mr. Monda, for the Attorney General does not support the sentence as it stands. He states that according to section 28 of the Penal Code, a fine of 20,00/- should have attracted not more than 12 months. He states that the sentence meted out to the appellant is therefore illegal. I agree with him. The appellant should have received not more than 12 months prison sentence. He would by now have finished his sentence. He is accordingly illegally held.
This appeal is allowed to the extent of reducing the original sentence to a maximum of 12 months, which should have been served by three months ago. The upshot is that the appellant has served the full sentence. The appeal is accordingly and to that extent allowed. The sentence is varied to the said extent. The appellant is hereby ordered released forthwith unless lawfully held in prison. It is so ordered.
Dated and delivered at Nairobi this 30th day of April 2003. D.A. ONYANCHA JUDGE