[2011] KEHC 4195 (KLR)
The court found that the sentence imposed by the magistrate was illegal because it did not comply with the mandatory minimum sentence of seven years imprisonment prescribed by Section 308(1) of the Penal Code. The fine of Kshs.20,000 with a default sentence of one year was not supported by law, as Section 28(2) of...
Source-derived case information.
- Citation
- [2011] KEHC 4195 (KLR)
- Parties
- Applicant: Willy Kibet Mutai & 36 Others; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 3 of 2011
- Procedural Posture
- Criminal Revision / Revision Order
- Outcome
- Application for revision declined.
- Legal Topics
- Sentencing Illegality, Revision Jurisdiction, Penal Code Section 308, Default Sentences, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Willy Kibet Mutai & 36 Others
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Revision Order
Legal Issues
- 1 Whether the sentence imposed by the magistrate under Section 308(1) of the Penal Code was lawful.
- 2 Whether the High Court should revise the sentence given the passage of time and partial execution.
- 3 Whether revising the sentence for only the remaining accused would be discriminatory.
Ratio Decidendi
The court found that the sentence imposed by the magistrate was illegal because it did not comply with the mandatory minimum sentence of seven years imprisonment prescribed by Section 308(1) of the Penal Code. The fine of Kshs.20,000 with a default sentence of one year was not supported by law, as Section 28(2) of the Penal Code limits the default sentence for such a fine to six months. However, since 19 of the 29 convicted persons had already paid their fines and been released, and could not be traced, revising the sentence for only the remaining eight would result in discrimination and prejudice. The court held that justice required declining to revise the sentence, despite its...
Court Disposition
Application for revision declined.
Orders
- The court declines to revise the sentence of the magistrate, though illegal.
- Order to be served on the trial magistrate and the State Counsel in charge- Rift Valley Province.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL REVISION NO. 3 OF 2011
WILLY KIBET MUTAI & 36 OTHERS.................................................................................................................APPLICANTS
VERSUS
REPUBLIC..........................................................................................................................................................RESPONDENT
REVISION ORDER
37 accused persons were charged with the offence of being found armed with dangerous or offensive weapons in circumstances that indicated that they were so armed with intent to commit felony contrary to Section 308(1) of the Penal Code. 29 accused persons were found guilty and convicted of the offence. The court sentenced them to a fine of Kshs.20,000/- in default one year imprisonment.
A person found guilty under Section 308(1) of the Penal Code is liable to imprisonment for not less than seven years imprisonment and not more than fifteen years. The sentence which the magistrate meted out on the accused persons is illegal. The sentence should have been between 7 years imprisonment and 15 years imprisonment. The default sentence can not therefore be 1 year’s imprisonment. Section 28(2) of the Penal Code gives a guideline on how much fine is to be imposed for certain periods of imprisonment. It is as hereunder:-
“S28(2) In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged 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 fixed by the following scale –
Amount Maximum Period
Not exceeding Sh.500 ......................................................... 14 days
Exceeding Sh.2,500 ......................... .................................... 1 month
Exceeding Sh.2,500 but not exceeding Sh.15,000 ... 3 months
Exceeding Sh.15,000 but not exceeding Sh.50,000 ........ 6 months
Exceeding Sh.50,000. ............................................................. 12 months”
A fine of Kshs.20,000/- could only attract a default sentence of 6 months, while Kshs.50,000/- attracts a default sentence of 12 months. If the court in its discretion was of the view that it wanted to impose a non custodial sentence on the accused persons then the fine should equate to not less than 7 years imprisonment and it should have been much more than what was imposed. Exercise of discretion could only have been within the law i.e. Section 308(1) of the Penal Code.
The court sentenced the accused persons on 6/1/2011. So far 19, accused persons have paid their fines and have been released. They may never be traced. It is my view that this revision has come too late in the day. It should have been sought in good time so that all the accused persons could have been subject to the revision order. If this court were to go ahead to revise the lower court’s order in respect of the remaining eight (8) accused persons, that would be discriminatory as against them because the revision order is likely to be prejudicial to them as the sentence would have to be between 7 years to 17 years imprisonment. This court is surprised that despite the fact that the sentence was of glaringly illegal, the State did not deem it necessary to file an appeal against the sentence. It seems both the court and prosecution did not bother to consider provisions of Section 308(1) of the Penal Code.
For justice to be seen to be done to all the accused persons herein, this court declines to revise the sentence of the magistrate though illegal. The prosecution can file an appeal if they deem it necessary.
This order should be served on the trial magistrate and the State Counsel in charge- Rift Valley Province.
DATED and DELIVERED this 12th day January, 2011.
R.P.V. WENDOH
JUDGE
PRESENT:
.............................................................for the state.
Kennedy – Court Clerk.