Abuga v Director of Public Prosecutions (Criminal Appeal E029 of 2024) [2025] KEHC 18542 (KLR) (27 November 2025) (Judgment) Neutral citation: [2025] KEHC 18542 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CRIMINAL APPEAL E029 OF 2024 TW CHERERE, J NOVEMBER 27, 2025 BETWEEN GEOFFREY AGWAYA ABUGA .............................................................. APPELLANT AND DIRECTOR OF PUBLIC PROSECUTIONS .................................... RESPONDENT (Being an appeal against conviction and sentence in Nyamira Criminal E257 of 2023 by Hon. M.C.Nyigei (PM) on 28th March 2023) JUDGMENT 1. The Appellant was convicted on his own plea of guilty in Nyamira CM’s Court Criminal Case No. E257 of 2023 for the ofiences of grievous harm contrary to section 234 of the Penal Code and stealing contrary to section 268 as read with section 275 of the Penal Code. 2. The Appellant pleaded guilty and was sentenced to fines of KES.50,000 and KES.6,000 with default imprisonment terms of 6 years and 2 years respectively, the defaults to run consecutively. He appealed with leave, challenging only the sentence. Issue for Determination 3. The appeal falls under section 348 of the Criminal Procedure Code which limits an appeal following a guilty plea to the legality or extent of the sentence. The conviction is therefore not under review, and the only issue is whether the sentence imposed was lawful. The Law on Default Imprisonment 4. Section 28 of the Penal Code governs the imposition of imprisonment in default of payment of a fine. The section sets mandatory ceilings as follows. First, the maximum default term is fourteen days for a fine not exceeding KES.500. Second, the maximum default term is one month for a fine exceeding https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18542/eng@2025-11-27 1
page 1 of 2
KES.500 but not exceeding KES.2,500. Third, the maximum default term is three months for a fine exceeding KES.2,500 but not exceeding KES.15,000. Fourth, the maximum default term is six months for a fine exceeding KES.15,000 but not exceeding KES.50,000. Fifth, the maximum default term is twelve months for a fine of exactly KES.50,000. Application to the Present Case 5. The fine of KES.50,000 on the first count attracted a maximum lawful default term of twelve months, rendering the six-year term imposed unlawful. The fine of KES.6,000 on the second count attracted a maximum default term of three months, rendering the two-year term imposed unlawful. 6. Both default sentences must therefore be set aside and substituted with the lawful terms provided in section 28. 7. Once substituted, the total lawful default imprisonment amounts to fifteen months. The record demonstrates that the Appellant has already been in custody for a period exceeding the lawful cumulative term of 15 months and has therefore fully served the substituted default imprisonment. Disposition 1. The conviction is upheld. 2. The fines imposed by the trial court are afirmed. 3. The default term of six years’ imprisonment on Count 1 is set aside and substituted with a lawful default term of twelve months’ imprisonment. 4. The default term of two years’ imprisonment on Count 2 is set aside and substituted with a lawful default term of three months’ imprisonment. 5. The appellant has already served the cumulative lawful default term of fifteen months. 6. The Appellant shall be released from custody forthwith unless otherwise lawfully held. DELIVERED AT NYAMIRA THIS 27TH DAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE. JUDGE Appearances Court Assistant - Hilda Appellant - Present For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18542/eng@2025-11-27 2
page 2 of 2