[2022] KEHC 12329 (KLR)
The court found that the applicant's sentence of one year imprisonment in default of payment of a fine of Kshs 20,000 was unlawful, as section 28(2) of the Penal Code limits default imprisonment for such fines to a maximum of six months. Furthermore, the court held that, pursuant to section 333(2) of the Criminal...
Source-derived case information.
- Citation
- [2022] KEHC 12329 (KLR)
- Parties
- Applicant: Emmanuel Wafula; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E069 of 2022
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- Application allowed. Applicant's continued detention declared unlawful. Immediate release ordered unless held for other lawful cause.
- Judges
- JN Kamau
- Legal Topics
- Stealing Stock, Sentencing, Default Imprisonment, Handling Stolen Property
- 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
Emmanuel Wafula
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the applicant's sentence of one year imprisonment in default of fine was lawful under section 28(2) of the Penal Code.
- 2 Whether the applicant was entitled to have the period spent in custody prior to sentencing considered under section 333(2) of the Criminal Procedure Code.
- 3 Whether the applicant was being unlawfully detained beyond the lawful sentence period.
Ratio Decidendi
The court found that the applicant's sentence of one year imprisonment in default of payment of a fine of Kshs 20,000 was unlawful, as section 28(2) of the Penal Code limits default imprisonment for such fines to a maximum of six months. Furthermore, the court held that, pursuant to section 333(2) of the Criminal Procedure Code, the period the applicant spent in custody prior to sentencing should have been considered in computing his sentence. As a result, the applicant had already completed his lawful sentence and was being unlawfully detained. The court therefore ordered his immediate release unless held for any other lawful cause.
Court Disposition
Application allowed. Applicant's continued detention declared unlawful. Immediate release ordered unless held for other lawful cause.
Orders
- The applicant be released from custody forthwith unless held for any other lawful cause.
Full Case Text
Judgment text and source record
16 paragraphs
Wafula v Republic (Criminal Revision E069 of 2022) [2022] KEHC 12329 (KLR) (2 August 2022) (Ruling)
Neutral citation: [2022] KEHC 12329 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Revision E069 of 2022
JN Kamau, J
August 2, 2022
Between
Emmanuel Wafula
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 offence of handling stolen property contrary to section 322 (1) (2) of the Penal Code. He was fined Kshs 20,000/- and in default to serve one (1) year imprisonment on 15/2/2022 having been first arraigned in court on 1/2/2020. The report of Fredrick Otieno the probation/community service officer that was filed on 29/7/2022 did not recommend the release of the applicant on a non-custodial sentence as members of the community still perceived him negatively. The court noted that the default imprisonment where the fine exceeds Kshs 20,000/- but does not exceed Kshs 50,000/- is six (6) months as provided in section 28 (2) of the Penal Code. The applicant’s sentence was therefore ending on 15/6/2022. Taking account of section 333 (2) of the Criminal Procedure Code cap 75 (Laws of Kenya) that taken into account the period from date to arrest until the date of sentence when computing the prison term, the applicant ought to have been released on 7/6/2022 and not the early date by prison of October 15, 2022. Accordingly, as the applicant had already completed his sentence, the sentence of one (1) year having been unlawful, illegal and without legal basis, it is hereby directed that the applicant be released from custody forthwith unless he be held for any other lawful cause. Orders accordingly.
DATED AND DELIVERED AT BUSIA ON THIS 2ND DAY OF AUGUST 2022. J. KAMAUJUDGE