[2024] KEHC 11562 (KLR)
The court found that the applicant was sentenced to pay a fine, with a custodial sentence only arising in default of payment. Since the substantive sentence was not custodial, section 333(2) of the Criminal Procedure Code did not apply. However, the trial court erred by imposing a default sentence of three years'...
Source-derived case information.
- Citation
- [2024] KEHC 11562 (KLR)
- Parties
- Applicant: Albert Kipkurui Yegon; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E033 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Sentence Review
- Outcome
- sentence varied
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Review, Default Sentences, Remand Custody Credit, Stealing Motor Vehicle, Forgery, Making Document Without Authority
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albert Kipkurui Yegon
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Review
Legal Issues
- 1 Whether the applicant is entitled to have time spent in remand custody considered in sentence pursuant to section 333(2) of the Criminal Procedure Code.
- 2 Whether the default custodial sentence imposed by the trial court exceeded the statutory maximum under section 28(2) of the Penal Code.
Ratio Decidendi
The court found that the applicant was sentenced to pay a fine, with a custodial sentence only arising in default of payment. Since the substantive sentence was not custodial, section 333(2) of the Criminal Procedure Code did not apply. However, the trial court erred by imposing a default sentence of three years' imprisonment for each count, which exceeded the statutory maximum of 12 months under section 28(2) of the Penal Code. The court therefore set aside the default sentence and substituted it with the lawful maximum of 12 months' imprisonment in default of payment of the fine for each count, with the sentences to run consecutively.
Court Disposition
sentence varied
Orders
- The sentence of a fine of Kshs. 100,000 in default to serve 3 years on each count is set aside.
- The applicant shall pay a fine of Kshs. 100,000 on each count, in default to serve 12 months' imprisonment on each count.
Full Case Text
Judgment text and source record
20 paragraphs
Yegon v Republic (Criminal Revision E033 of 2024) [2024] KEHC 11562 (KLR) (1 October 2024) (Ruling)
Neutral citation: [2024] KEHC 11562 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision E033 of 2024
DR Kavedza, J
October 1, 2024
Between
Albert Kipkurui Yegon
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged, convicted and sentenced for the following offences:i.Counts I & II stealing motor vehicle contrary to section 278A of the Penal Code - fine of Kshs 100,000 in default to serve 3 years imprisonment on each count;ii.Counts V & VI of forgery contrary to section 349 of the Penal Code - fine of Kshs 100,000 in default to serve 3 years imprisonment on each count;iii.Counts VII and VIII of making a document without authority contrary to section 357 (A) of the Penal Code - fine of Kshs 100,000 in default to serve 3 years imprisonment on each count;
2. The applicant has filed an application seeking sentence review. He urged the court to consider the time spent in remand custody pursuant to the provisions of section 333 (2) of the Criminal Procedure Code.
3. From the record, I note that the sentence imposed by the trial court was not a custodial sentence but the payment of a fine. The custodial sentence arises from the failure to pay the fine imposed by the trial court. In the premises, the provisions of section 333 (2) of the Criminal Procedure Code are not applicable.
4. As for the fines imposed for the offence, it was at the court’s discretion. However, regarding the default sentence, the trial court erred in respect imposing a 3-year default sentence. The default sentence ought to have been 12 months imprisonment under section 28 (2) of the Penal Code, Cap 63 Laws of Kenya.
5. In the premises I hereby set aside the sentence of a fine of Kshs. 100,000 in default to serve 3 years on each count and substitute it with the payment of a fine of Kshs. 100,000 in default to serve 12 months imprisonment on each count. The sentences shall run consecutively.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 1ST DAY OF OCTOBER 2024. D. KAVEDZAJUDGE