[2010] KEHC 1118 (KLR)
The trial magistrate erred in law by sentencing the accused to a fine for the offence of stealing under Section 275 of the Penal Code, which does not provide for a fine as a punishment. Section 28 of the Penal Code, which allows for the imposition of a fine, is only applicable where the law specifically provides for...
Source-derived case information.
- Citation
- [2010] KEHC 1118 (KLR)
- Parties
- Accused: Vincent Oduori Onduku; Prosecutor: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Revision Case 263 of 2010
- Procedural Posture
- Criminal Revision / Revision of Sentence After Conviction and Sentencing in Lower Court
- Outcome
- sentence set aside and substituted with lawful imprisonment
- Judges
- MJA Emukule
- Legal Topics
- Sentencing Error, Stealing Offence, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Vincent Oduori Onduku
Accused
Republic
Prosecutor
Procedural Posture
Criminal Revision / Revision of Sentence After Conviction and Sentencing in Lower Court
Legal Issues
- 1 Whether the sentence imposed by the trial magistrate was lawful under Section 275 of the Penal Code.
- 2 Whether the trial magistrate erred in applying Section 28 of the Penal Code to impose a fine for the offence of stealing.
Ratio Decidendi
The trial magistrate erred in law by sentencing the accused to a fine for the offence of stealing under Section 275 of the Penal Code, which does not provide for a fine as a punishment. Section 28 of the Penal Code, which allows for the imposition of a fine, is only applicable where the law specifically provides for such discretion. Since Section 275 prescribes only imprisonment, the sentence of a fine was null and void. The High Court, exercising its revisionary jurisdiction, set aside the unlawful sentence and substituted it with a lawful sentence of two years imprisonment to run from the date of conviction.
Court Disposition
sentence set aside and substituted with lawful imprisonment
Orders
- The sentence of a fine of Kshs.6,000 or in default six months imprisonment is set aside.
- The accused is sentenced to two years imprisonment to run from the date of conviction.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
REVISION CASE 263 OF 2010
VINCENT ODUORI ONDUKU ……………………………….ACCUSED
VERSUS
REPUBLIC …………………………………………………..PROSECUTOR
REVISION
The accused pleaded guilty and was convicted of the offence of stealing contrary to Section 275 of the Penal Code, (Cap 63, Laws ofKenya).The accused was sentenced to a fine of Kshs.6,000/- or in default to six (6) months imprisonment.
The punishment for offence of stealing contrary to Section 275 of the Penal Code is three (3) years, and there is no provision for a fine.
The learned Chief Magistrate noticed this error and in exercise of its power under Section 363 of the Criminal Procedure Code called for the record, and forwarded the same to this court for Revision.
I have looked at the record of proceedings in lower court.I have also considered the provisions of Section 275 of the Penal Code in relation to Section 28 of the Penal Code under which the learned Resident Magistrate purported to sentence the accused.I am satisfied that the learned trial magistrate acted in error by sentencing the accused to a fine of Kshs.6,000/- or in default to six (6) months imprisonment.
The learned trial Magistrate acted in error, firstly by purporting to act under the provisions of Section 28 of the Penal Code - which only apply in the situations prescribed thereunder - where the law provides for the exercise of the court's discretion to impose a fine and in default a term of imprisonment, or to both such fine and imprisonment.Section 275 (which relates to a charge of stealing) prescribes the punishment for a fine.The sentence imposed by the learned trial magistrate is therefore null and void in law.
In exercise of the discretion conferred up this court by the provisions of Section 364(1)(b)and 3649(2) - proviso, the said sentence, is hereby set aside, and in lieu thereof, the accused sentenced to 2 years imprisonment, to run from the date of his conviction.
There shall be orders accordingly.
Dated, signed and delivered this 27th day of July 2010
M. J. ANYARA EMUKULE
JUDGE