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Njama v Republic (Criminal Revision E328 of 2022) [2022] KEHC 16230 (KLR) (9 December 2022) (Ruling)
Neutral citation:
[2022] KEHC 16230 (KLR)
Republic of Kenya
Criminal Revision E328 of 2022
JN Onyiego, J
December 9, 2022
Between
Mikaeli Njama
Applicant
and
Republic
Respondent
(From original conviction and sentence in Criminal Case No. E725 of 2021 of the Principal Magistrate’s Court at Taveta)
Ruling
1.On November 8, 2022 the Applicant was jointly with others arraigned before Taveta Principal Magistrate’s Court charged with the offence of entering into a protected area with about 300 heads of cattle without authorization. Particulars were that on the 7th day of November, 2022 at around 0600 hours at Amboseli in Jipe area within Tsavo West National Park in Taita Taveta County Gps coordinates 37M 0393075 UTM 9583704 jointly entered into the said protected area with about 300 heads of cattle without authorization.
2.He was further charged with count two for the offence of being unlawfully present in Kenya Contrary to Section 53(1)(J) as read with Section 53(2) of the Kenyan Citizen Immigration Act. Particulars states that on 7th day of November, 2022 at around 0600 hours at Amboseli in Jipe area within Tsavo West National Park in Taita Taveta County Gps coordinates 37M 0393075 UTM 9583704 jointly entered in the said area without a valid passport and being a Tanzanian national.
3.Having entered a plea of guilty, the Applicant was on November 9, 2022 convicted to a fine of Kshs. 200,000/= in default 2 years imprisonment in respect of Count One and a fine of Kshs. 50,000/= in default 10 months imprisonment in respect of Count Two.
4.Dissatisfied with the sentence, the Applicant moved to this court vide a notice of motion dated and filed on November 14, 2022 seeking review of sentence as being excessive.
5.In response, Mr. Sirima for the state submitted that the fine of Kshs. 200,000/= in respect of Count 1 was excessive as the maximum fine is Kshs. 100,000/=
6.I have considered the application herein, response thereof and submissions by both parties. Section 102 (3) of the Wildlife Conservation and Management Act, provides that:‘Any person who contravenes sub section (2) commits an offence and is liable upon conviction to a fine not exceeding One Hundred Thousand Shillings or to imprisonment for a term not exceeding six months.’
7.It is therefore clear that the sentence meted out by the trial court was ultimately illegal. In the circumstances, this court is under obligation to exercise its supervisory powers under Article 165(6) and (7) of the Constitution to correct the error. Besides, under Section 362 and 364 the High Court is empowered to call upon and examine the record of criminal proceedings so as to satisfy itself as to the correctness, legality, propriety on sentence passed or order made and on the regularity of the proceedings.
8.I am alive to the fact that sentencing is at the discretion of the trial court. However, this court is empowered to intervene where the sentence meted out is illegal or excessive. See Shadrack Kipkoech Kogo =Versus= Republic Criminal Appeal Number 25 of 2003 where the Court of Appeal held that sentencing is at the discretion of the trial court and an appellate court may only interfere if it is shown that the trial court took into consideration irrelevant factors and that the sentence was excessive and therefore an error.
9.In view of the above, the sentence of a fine of Kshs. 200,000/= was illegal and excessive. Accordingly, the sentence in respect of Court I being a fine of Kshs. 200,000/= in default 2 years imprisonment is substituted with a fine of Kshs. 100,000/= in default serve six months. The substituted sentence to start running from the date of sentence.
10.Count 2 is however lawful and I have no reason to interfere with it.
11.Accordingly, the Deputy Registrar to cause an amendment to the committal warrant to reflect the substituted sentence. Right of appeal 14 days.
DATED SIGNED AND DELIVERED IN OPEN COURT THIS 9TH DAY OF DECEMBER, 2022.HON. J. ONYIEGOJUDGE
