Automated Summary
Key Facts
KIPKOSKE arap SABURU was convicted of theft of eight goats under section 255 of the Penal Code. He was sentenced to six months' hard labour and ordered to pay Sh. 20 costs of prosecution, with an additional two months' imprisonment in default of payment under section 169 of the Criminal Procedure Code. The Supreme Court confirmed the six-month imprisonment but set aside the costs order, substituting it with a 14-day hard labour term in default of payment. The court ruled that imprisonment in default of costs is only lawful with a distress order and should not exceed the period specified for fines in section 28(4) of the Penal Code (14 days) without special circumstances.
Issues
The court addressed the legality of a sentence imposing imprisonment in default of payment of prosecution costs under section 169 of the Criminal Procedure Code. It held that an order of imprisonment can only be made 'in default of payment or distress' and set aside the original two-month imprisonment order, substituting it with fourteen days. The decision emphasized that the period of imprisonment should not exceed that permitted for fines under section 28(4) of the Penal Code unless special circumstances apply.
Holdings
The court held that an order of imprisonment in default of payment of costs is invalid unless it includes 'in default of payment or distress'. While section 169 allows up to three months' imprisonment in default, the court ruled that in the absence of special circumstances, the period should not exceed the 14 days specified in section 28(4) of the Penal Code for fines. The original two-month imprisonment in default was set aside and replaced with 14 days' hard labour.
Remedies
The court confirmed the original six months' hard labour sentence but set aside the order to pay Sh. 20 costs of prosecution and in default, substituting it with a 14-day imprisonment in default. The modification was due to the requirement that imprisonment in default should be in 'default of payment or distress' and the period should not exceed that for fines under section 28(4) of the Penal Code.
Monetary Damages
20.00
Legal Principles
The court held that imprisonment in default of payment for costs must not exceed the period specified for fines under section 28(4) of the Penal Code unless special circumstances justify a longer term. The original two-month imprisonment order was replaced with fourteen days to align with this principle.
Cited Statute
- Criminal Procedure Code, section 169
- Penal Code, section 28(4)
Judge Name
- Sir Joseph Sheridan
- Webb
- Gamble
Passage Text
- 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'.
- 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.