Rex v Saburu (Conf. Case No. .848 of 1934.) [1934] EACA 3 (1 January 1934) | Sentencing Guidelines | Esheria

Rex v Saburu (Conf. Case No. .848 of 1934.) [1934] EACA 3 (1 January 1934)

Full Case Text

# CRIMINAL CONFIRMATION.

Before SIR JOSEPH SHERIDAN, C. J., WEBB, J., and GAMBLE, Ag. J.

#### REX, Prosecutor

11.

### KIPKOSKE arap SABURU, Accused.

#### Conf. Case No. 848 of 1934.

Criminal Procedure Code, section 169—Costs—Imprisonment in default—Period of imprisonment.

Accused and another were charged before the Second Class Magistrate at Kericho with theft of eight goats under section 255 of Penal Code. The other accused was acquitted and the present accused was convicted on his plea and sentenced to "six months" hard labour and to pay Sh. 20 costs of prosecution and in default (under section 169 Cr. P. C.) a further two months' imprisonment with hard labour". The matter was set down before the Supreme Court for argument on a question as to the legality of sentence.

$Held$ (4-1-35).—That where a convicted person is ordered to pay costs of prosecution an order of imprisonment can only be made "in default of payment or distress". Although, under section 169, a period of three months imprisonment in default of payment or distress may be imposed, in the absence of special circumstances the period should not exceed that laid down by section 28 (4) of the Penal Code in the case of fines.

## Wallace for Crown.

ORDER.—The sentence of six months' hard labour is confirmed but the order "to pay Sh. 20 costs of prosecution and in default (under section 169 C. P. C.) a further two months' hard labour" is set aside and the following order substituted therefor: "to pay Sh. 20 costs of prosecution and in default of payment or of distress fourteen days' hard labour". In view of the 'words "or of distress' in the section an order of imprisonment in default of payment is bad. Our reasons for reducing the period of imprisonment to fourteen days is that although a term not exceeding three months is competent we are of opinion that the period should not exceed that fixed for non-payment of a fine by section 28 (4) of the Penal Code in the absence of special reasons.