Geoffrey Gatonga Nyaga v Republic

3. The application was based on grounds set in the application, and supported by an affidavit in the same terms, as follows: “ Grounds That: 1) That I the petitioner was arrested and charged before the magistrate court at Wang'uru for the offence of obtaining money by false pretence C/sec 313 of PC on the 17/05/025. 2) That I pleaded guilty whereby I was sentenced to serve 2 yrs. imprisonment. 3) That 1am the first offender. 4) That I am a resident of Embu. 5) That I am a family man married and blessed with three (3) children who are now under care of church family and well-wishers as we separated with their mother 2 yrs. prior to my arrest. 6) That I am the sole bread winner of the said family where they wholly depend on me. 7) That I am mature enough now at my 49th birthday. 8) That I am fully rehabilitated ready to join the community in national development. 9) That I am remorseful for all that transpired on the fateful day of incident. 10) That I beg for leniency and have pleaded before God that I will never entertain any offence within my vicinity.” 4. Despite opportunity to do so, the DPP did not (as at 30/4/2026) file any response or submissions on the application for revision. 5. Section 313 of the Penal Code provides for a penalty of imprisonment terms of three years, as follows: “ 313. Obtaining by false pretences Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years. [Act No. 3 of 1969, s. 4, Act No. 22 of 1987, Sch., Act No. 11 of 1993, Sch., Act No. 5 of 2003, s. 56.]” 6. Section 26(3) of the Penal Code permits the imposition of a sentence of a fine in lieu or in addition to a sentence of imprisonment as follows: “ 26. Imprisonment (1) A sentence of imprisonment for any offence shall be to imprisonment or to imprisonment with hard labour as may be required or permitted by the law under which the offence is punishable. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10728/eng@2026-05-14 2

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(2) Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term. (3) A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or in substitution for imprisonment: Provided that— 7. (i) where the law concerned provides for a minimum sentence of imprisonment, a fine shall not be substituted for imprisonment; (ii) deleted by Act No. 5 of 2003, s. 4. [Act No. 3 of 1969, s. 2, Act No. 5 of 2003, s. 4.]” Unless otherwise provided, Section 28 (2) of the Penal Code provides the highest default sentence of imprisonment as 12 months, as follows: “ (2) 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 [scale maximum of over ksh.50,000/has a default sentence of imprisonment for 12 months].” 8. While a sentence of imprisonment may be imposed for the offence under section 313 of the Penal Code the default penalty may not in the case of the said offence exceed the timeline provided for under section 28 (2) of the Penal Code, in this case 12 months at the maximum of the Scale for fines exceeding Ksh.50,000/-. 9. If the trial court wanted to impose a sentence of imprisonment for two years, it ought to have been a direct sentence of imprisonment not a default sentence; and if the trial court wanted to impose a fine, then it was bound by the provisions of section 28 (2) of the penal Code which requires the court to be guided thereby. 10. Consequently, the sentence of the trial court must be revised for legality. 11. Having considered the facts of the case, including the fact of the plea of guilty, the present circumstances of the applicant as set out in the affidavit in support of the application and time already spent in service of the sentence, the Court shall revise the sentence so that the applicant serves a noncustodial Community Service Order for the period of six months. Orders 12. Accordingly, for the reasons set out above, the Court revises the sentence of the trial court as follows: 1. The Court revises the default sentence to a period of twelve (12) months in accordance with scale in section 28(2) of the Penal Code. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10728/eng@2026-05-14 3

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2. The offender will in addition serve Community Service order for a period of six months. 3. Having already served the default sentence of twelve (12) since sentence of the trial court, this Court now directs that the applicant shall be released from custody and placed on Community Service Order for a period of six months at a placement to be identified by the County Community Service Order Officer. Orders accordingly. DATED AND DELIVERED THIS 14TH DAY OF MAY 2026. EDWARD M. MURIITHI JUDGE Appearances: Mr. Mwangi for DPP Applicant in person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10728/eng@2026-05-14 4

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