Mohamed v Republic (Criminal Appeal E050 of 2022)  KEHC 16223 (KLR) (9 December 2022) (Judgment)
Neutral citation:  KEHC 16223 (KLR)
Republic of Kenya
Criminal Appeal E050 of 2022
JN Onyiego, J
December 9, 2022
(From original conviction and sentence in Criminal Case No. 473 of 2017 of the Chief Magistrate’s Court at Voi)
1.The appellant herein was arraigned before Voi Principal Magistrate’s Court on September 14, 2017 facing the charge of being in possession of wildlife trophy without a permit contrary to section 95 of the Wildlife Conservation and Management Act, 2013 Laws of Kenya.
2.Particulars stated that on September 13, 2017 at around 0830 hours at Mkuki area within Taita Taveta county, jointly with others not before court, they were found in possession of wildlife trophy namely seven elephant tusks weighing forty eight kgs (48) without a permit.
3.Having returned a plea of not guilty, the matter was set for full hearing. He however, remained in custody up to May 31, 2018 when he was released on bond and later absconded. He was re-arrested and judgment delivered within two weeks and thereafter sentenced on December 8, 2020 for 5 years. Dissatisfied with sentence meted out, he filed a petition of appeal on September 22, 2022 on grounds that the sentence was excessive and punitive and that the court did not take into account the period spent in custody.
4.When the matter came up for hearing, the appellant opted to argue the ground on review of sentence. Mr Sirima for the state conceded that the court did not take into account the period spent in remand custody.
5.I have considered the petition of appeal herein, response thereto and oral submissions by the parties. The applicant was found in possession of 7 elephant tusks weighing 48 kilogrammes. The sentence for such an offence under section 95 of Wildlife Conservation and Management Act 2013 is not less than a million or to imprisonment for a period not less 12 months or both.
6.According to the appellant the sentence was excessive as he should have been given the minimum sentence prescribed. The issue at hand is the severity of sentence and failure to compute the period spent in remand custody. It is trite law that sentencing is at the discretion of the trial court. However, the appellate court can only intervene if the sentence is illegal, excessive or the trial court applied wrong principles or took into consideration irrelevant factors. See Shadrack Kipkoech Kego v Republic Eldoret criminal appeal number 353 of 2003.
7.The trial court took into account the mitigation on record and the seriousness of the offence. To be found in possession of 7 elephant tusks means 7 elephants must have died. This is a serious offence calling for a deterrent sentence. Therefore, I do not find any fault in sentencing the appellant 5 years.
8.However, the court should have considered the period spent in remand custody which is 9 months. Section 333 (2) of the CPC is clear on that aspect. To that extent, the appellant is entitled to have the period factored into when computing sentence. To that extend the appellant will serve 5 years less 9 months being the period spent in remand custody. Right of appeal 14 days.Dated signed and delivered in open court this 9th day of December, 2022.…………………….HON. J. ONYIEGOJUDGE