Joseph Muriithi Nyamu v Republic

High Court, at Nyeri

October 18, 1988

Abdullah J

Criminal Appeal No 172 of 1987

(Appeal from Conviction and Sentence of the District Magistrate’s Court at Baricho, J M Kairo Esq)

Sentencing – jurisdiction of a court to pass sentence – prescribed minimum sentence exceeding the sentence which trial court is authorised to pass imprisonment – whether trial court having jurisdiction to hear the case and pass sentence – Penal Code (cap 63) section 278–– Criminal Procedure Code (cap 75) sections 4, 7(3)(a), 364(2).

Jurisdiction – District Magistrate’s Court of the second class – whether court having jurisdiction to try offence for which the prescribed minimum sentence exceeds the sentence which the court is authorised to pass - Penal Code (cap 63) section 278 – Criminal Procedure Code (cap 75) sections 4, 7(3)(a), 364(2).

The appellant was convicted in a District Magistrate’s Court of the second class for stock theft contrary to section 278 of the Penal Code (cap 63).

He was sentenced to 2 years’ imprisonment with four strokes of corporal punishment.

The Penal Code section 278 prescribed a minimum punishment of seven years’ imprisonment with hard labor together with corporal punishment for the offence.

Held:

1. By the penal provisions of the Penal Code (cap 63) section 278, a sentence of imprisonment imposed under that section was not to be less than seven years. The section did not allow for discretion or room to impose a lesser sentence.

2. When a sentence which is less than the prescribed minimum is imposed, the High Court may, under its power of revision under the Criminal Procedure Code (cap 75) section 364(2), impose the correct sentence after giving the offender an opportunity of being heard, provided that the trial court had the power to impose such minimum sentence.

3. The fifth column of the First Schedule to the Code showed that the offence in this case was triable by a subordinate court of the first or second class in accordance with section 4 of the Code. However, section 7(3)(a) authorized the latter court to pass a sentence of imprisonment for a term not exceeding two years.

4. Notwithstanding the provisions of section 4 of the Criminal Procedure Code, a court which has no power to impose a minimum sentence required by the penal provisions cannot have jurisdiction to try and determine the offence under such penal provision. A conviction and sentence of a court which has no jurisdiction are a nullity.

Appeal allowed, retrial ordered.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 264(2); 308(1); 322

2. Criminal Procedure Code (cap 75) sections 4, 7(3)(a); 221, First

Schedule, Fifth Column

Advocates

Appellant unrepresented

Gacivih for the Respondent