[2018] KEHC 4647 (KLR)
The court found that the default sentence of one and a half years' imprisonment imposed on the appellant for non-payment of a fine was manifestly illegal, as it exceeded the statutory maximum of twelve months provided under section 28(2) of the Penal Code. The court held that sentences must strictly comply with...
Source-derived case information.
- Citation
- [2018] KEHC 4647 (KLR)
- Parties
- Appellant: Tuyizere Theogere; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 96 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed in part
- Judges
- DW Mbuteti
- Legal Topics
- Immigration Offences, Sentencing Illegality, Default Sentence, Repatriation Order
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tuyizere Theogere
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the default term of imprisonment imposed on the appellant exceeded the statutory maximum under Kenyan law.
- 2 Whether the sentence should be substituted to comply with section 28(2) of the Penal Code.
Ratio Decidendi
The court found that the default sentence of one and a half years' imprisonment imposed on the appellant for non-payment of a fine was manifestly illegal, as it exceeded the statutory maximum of twelve months provided under section 28(2) of the Penal Code. The court held that sentences must strictly comply with statutory limits, and any excess is unlawful. Consequently, the court allowed the appeal to the limited extent of setting aside the illegal default sentence and substituting it with a lawful term of twelve months' imprisonment, effective from the date of original sentencing. The order for repatriation to Rwanda was upheld.
Court Disposition
appeal allowed in part
Orders
- The default sentence of one and a half years' imprisonment is set aside and substituted with a default sentence of twelve months' imprisonment, effective from the date of original sentencing.
- The order of repatriation to Rwanda remains in force.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL APPEAL NO 96 OF 2017
TUYIZERE THEOGERE........................APPELLANT
VERSUS
REPUBLIC...........................................RESPONDENT
(Appeal from original Sentence dated 5/09/2017 in Nanyuki CM
Criminal Case No 1385 of 2017 – L Mutai , CM)
J U D G M E N T
1. The Appellant herein TUYIZERE THEOGEREis a national of Rwanda. On 5th September, 2017 he pleaded guilty to the offence of being unlawfully present in Kenyacontrary to section 53(1), (2) & (5)of the Kenya Citizenship and Immigration Act, No 12 of 2011. It was alleged in the particulars of the offence that on 3rd September, 2017 at about 22. 00 hours at Naromoru Township in Kieni East Sub-County of Nyeri County, being a Rwanda citizen, he was found unlawfully present in Kenya by virtue of his entrance permit having expired on 1st August, 2017. He was sentenced to a fine of KShs 100,000/00 and in default of payment of serve 1 ½ years imprisonment. It was further ordered that the Appellant be repatriated back to his country Rwanda once he paid the fine or served the default sentence.
2. The Appellant has appealed only against the sentence, specifically the default term of imprisonment. That term of imprisonment is manifestly illegal. It should not have exceeded twelve months imprisonment. Section 28(2)of the Penal Code makes this abundantly clear.
3. The Appellant has now served just over one year of his default sentence. I will allow his appeal against the default sentence of 1½ years. It is hereby set aside. I will substitute therefore a default sentence of twelve (12) months, effective from the date of his original sentencing on 1st August 2017. The order of repatriation to his country Rwanda will remain. It is so ordered. Only to that limited extent is the appeal against sentence allowed.
DATED AND SIGNED AT NANYUKI THIS 2ND DAY OF AUGUST 2018
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 15TH DAY OF AUGUST 2018