The applicant in the Revision having been charged with the offence of stealing and convicted he was sentenced to a fine of Ksh. 100,000/= and in default to serve 2 years imprisonment.
He has moved this court by way of Revision under the provisions of Section 362 of the Criminal Procedure Code and also sought to rely on Articles 47 and 49 of the Constitution of Kenya.
The state is not opposed to his application. Mr. Muhindi Prosecution counsel has not opposed the application for reasons that by the time the applicant was convicted and sentenced he had been in remand for 1 year and that time appears not to have been taken into account when the applicant was convicted and sentenced. I his view the sentence imposed was manifestly excessive.
I agree with counsel for the state that the sentence imposed by the lower court was manifestly excessive and further note that it was illegal under Section 28 of the Penal code.
Once the magistrate had reached the conclusion that the applicant was to pay a fine, the prison term in default should not have exceeded 1 year.
The court was also not fair to the applicant in that the pre-trial detention period was not discounted.
It should be noted by the trial courts that the period spent in custody during trial should be discounted in line with the sentencing policy and emerging best practice locally and internationally. The liberty of a person is precious and any day spent in custody when one ideally should be free should not be taken lightly. The magistrate should have taken that into account and actually set the applicant free on the date of sentence since by the court imposing a fine of Ksh. 100,000/= the magistrate ought to have known that the maximum penalty in default should not have exceeded 1 year. The decision of the learned Honourable court is thus revised on account of being illegal, incorrect and irregular under Section 364 of the Criminal Procedure Code.
The applicant’s application is hereby allowed. The sentence of 2 years in default is revised and in substitution therefore to a term of 1 year in default is imposed.
The applicant having been in custody for a year before sentence taking that period into account the applicant should be set free before the court rises.
It is so ordered.