Maturi v Republic [2022] KEHC 10053 (KLR)

Maturi v Republic (Criminal Revision E389 of 2021) [2022] KEHC 10053 (KLR) (Crim) (6 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10053 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E389 of 2021

LN Mutende, J

July 6, 2022

Between

James Maoga Maturi

Applicant

and

Republic

Respondent

Ruling

1. James Maoga Maturi, the applicant, approached this court through a Notice of Motion filed herein on 5th November, 2021 seeking consideration of time he spent in custody during trial.

2. The application is premised on grounds that the court did not take into account time spent in custody as provided by Section 333(2) of the Criminal Procedure Code (CPC).

3. The State through learned State Counsel Mr. Otieno conceded the application.

4. The applicant was charged with the offence of stealing contrary to Section 278 A of the Penal Code. Particulars being that on 2nd day of July, 2019 at Kawagware Area in Dagoretti Sub-County within Nairobi County, stole a motor-vehicle Registration No. KAZ 398Z Toyota Hiace matatu valued at Kenya Shillings Five Hundred Thousand (Ksh 500,000/-) the property of Stephen Omosa Nyangau.

5. The penalty for a person who steals a motor-vehicle is provided for by Section 278A of the Penal Code that Stipulates as follows:Stealing motor vehicle If the thing stolen is a motor vehicle within the meaning of the Traffic Act (Cap. 403), the offender is liable to imprisonment for seven years.

6. I note that the applicant was in remand custody for one year prior to being released on bond during trial, but instead of the court imposing a custodial sentence it opted to impose a fine of Kenya Shillings Three Hundred Thousand (300,000/-) with a default sentence of three (3) years imprisonment. Having made the option, the court was required to comply with the law.

7. Section 28(2) of the Penal Code provides that:In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Cap. 91) 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 Exceeding Sh. 50,000…………………12 months.

8. This court has supervisory jurisdiction over the subordinate court as regards satisfaction of the regularity of orders made. Therefore I must act suo moto.

9. What is provided by Section 28 of the Penal Code is an enactment of Statute therefore the sentence commences from the date it is imposed as opposed to time of arrest or arraignment. The question of Section 333(2) of the (CPC) as alleged does not arise.

10. What I can however not overlook is the question of the incorrectness of the default sentence. In the premises I hereby set aside the sentence meted out which I substitute with a sentence of a fine of Kenya Shillings Three Hundred Thousand (Ksh 300,000/-) and in default to serve one (1) year imprisonment.

11. The application succeeds to that extent.

12. It is to ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 6TH DAY OF JULY, 2022. L. N. MUTENDEJUDGEIn the presence of:ApplicantMs. Chege - ODPPCourt Assistant - Mutai