[2008] KEHC 1847 (KLR)
The trial magistrate imposed default sentences of 16 months and 12 months imprisonment for non-payment of fines of Kshs 35,000 and Kshs 15,000 respectively. Section 28 of the Penal Code provides that for fines exceeding Kshs 15,000 but not exceeding Kshs 50,000, the maximum default sentence is 6 months imprisonment....
Source-derived case information.
- Citation
- [2008] KEHC 1847 (KLR)
- Parties
- Appellant: William Gichungu Njenga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 298 of 2007
- Procedural Posture
- Criminal Appeal / Ruling on Sentence Revision During Appeal
- Outcome
- Default sentences set aside and substituted with lawful maximum; appellant to be released if already served 6 months unless otherwise lawfully held.
- Judges
- DO Ohungo
- Legal Topics
- Sentencing, Default Sentence, Revisionary Powers, Obtaining by False Pretences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Gichungu Njenga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Sentence Revision During Appeal
Legal Issues
- 1 Whether the default sentences imposed by the trial court for non-payment of fines exceeded the statutory maximum under section 28 of the Penal Code.
- 2 Whether the court should exercise its revisionary powers to rectify an illegal sentence.
Ratio Decidendi
The trial magistrate imposed default sentences of 16 months and 12 months imprisonment for non-payment of fines of Kshs 35,000 and Kshs 15,000 respectively. Section 28 of the Penal Code provides that for fines exceeding Kshs 15,000 but not exceeding Kshs 50,000, the maximum default sentence is 6 months imprisonment. The default sentences imposed exceeded the statutory maximum and were therefore illegal. The High Court, exercising its revisionary jurisdiction, set aside the excessive default sentences and substituted each with the lawful maximum of 6 months imprisonment. If the appellant had already served 6 months, he was to be released unless otherwise lawfully held.
Court Disposition
Default sentences set aside and substituted with lawful maximum; appellant to be released if already served 6 months unless otherwise lawfully held.
Orders
- The default sentences of 16 months and 12 months imprisonment are set aside and substituted with 6 months imprisonment each as the default sentence for counts 1 and 2 respectively.
- If the appellant has already served a period of six months imprisonment, he shall be set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 298 of 2007
WILLIAM GICHUNGU NJENGA……..………..…..APPELLANT
VERSUS
REPUBLIC ……..…………………………………RESPONDENT
(From the original conviction and sentence in Criminal Case No. 1776 of 2006 of the Senior Resident Magistrate’s Court at Githunguri by L. Mutai SRM)
R U L I N G
When this matter came for hearing of the appeal on 14th May, 2008 the appellant indicated that he was not ready to proceed with the appeal. However, the learned State Counsel Miss Gateru noted that the default sentence was excessive. The appellant had been fined Kshs 35,000/- in default to serve 16 months imprisonment on count 1 yet under section 28 of the Penal Code, the default sentence ought to have been 6 months imprisonment – the same applied to count 2 where the fine imposed was Kshs 15,000/- and in default to serve 12 months imprisonment. The appellant was not able to raise the fine and is now serving the default sentence which is excessive. The learned State Counsel requested that the position be regularized. The appellant was charged on two counts of obtaining money by false pretences contrary to section 313 Penal Code and entered a plea of not guilty on both counts. After the hearing of the cases, he was convicted on both counts and on 3rd April, 2007, the learned trial magistrate Ms L. Mutai – Senior Resident Magistrate sentenced him as follows:-
“On the 1st count fined Kshs 35,000/- and in default to serve 16 months imprisonment and on the 2nd count a fine of Kshs 15,000/- and in default to serve 12 months imprisonment. Conviction and sentence to run concurrently.
Under the provisions of section 313, any person who is charged for obtaining by false pretence when convicted is found guilty of a misdemeanor and is liable to imprisonment for three years.
The learned trial magistrate opted to impose a fine with a default sentence.
Section 28 of the Penal Code deals with FINESand provides as follows:-
28 (1) Where a fine is imposed under any law, then in the absence of express provisions relating to the fine on that law the following provisions shall apply.
(a)Where no sum is expressed to which the fine may extend, the amount of the fine which may be imposed is unlimited, but shall not be excessive.
(2) In the absence of express provisions in any written law relating thereto…. or in respect of the non-payment of a fine of any sum adjourned to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fined by the following scale.
Amount
Exceeding Kshs 15,000 but no
Exceeding Kshs 50,000……………….. 6 months
Clearly then the default sentence was excessive and illegal and must be rectified under this courts revisionary powers. To this extent, the sentence is set aside only on the default part and substituted with 6 months imprisonment as the default sentence.
If the appellant has already served a period of six months imprisonment then he shall be set at liberty forthwith unless otherwise lawfully held. This finding does not bar appellant from pursuing his appeal.
Delivered and dated this 28th day of May 2008 at Nairobi.
H.A. OMONDI
JUDGE