Case Metadata |
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| Case Number: | Criminal Appeal 1446 of 1986 |
|---|---|
| Parties: | Tarimo v Republic |
| Date Delivered: | 15 Jun 1989 |
| Case Class: | Criminal |
| Court: | High Court at Nairobi (Milimani Law Courts) |
| Case Action: | Judgment |
| Judge(s): | David Christopher Porter |
| Citation: | Tarimo v Republic[1989] eKLR |
| Advocates: | Appellant absent not wishing to be present Onyango for the Respondent |
| Case History: | (Appeal from the original conviction and sentence of the Resident Magistrate’s Court at Nairobi, B Okaya (Miss) dated 14th October 1986, in Criminal Case No 2955 of 1986) |
| Court Division: | Criminal |
| County: | Nairobi |
| Advocates: | Appellant absent not wishing to be present Onyango for the Respondent |
| History Docket No: | Criminal Case No 2955 of 1986 |
| Case Summary: | Tarimo v Republic High Court, at Nairobi June 15, 1989 Porter J Criminal Appeal No 1446 of 1986 Criminal Practice and Procedure – repatriation – accused convicted and sentenced for theft of motor vehicle under Penal Code (cap 63) section 278A – trial magistrate making “order of repatriation” of accused – whether magistrate having jurisdiction to make such order – Penal Code section 26A. The appellant was tried in a magistrate’s court and convicted for theft of a motor cycle contrary to section 278A of the Penal Code (cap 63). In addition to sentencing the appellant to 12 months imprisonment and 6 strokes of the cane, the magistrate made an “order of repatriation” against him. The appellant appealed. Held: 1. The trial magistrate had no jurisdiction to make an order for repatriation. 2. The magistrate only had jurisdiction to make recommendation to the Minister that the appellant be removed from and remain out of Kenya. 3. The appellant had been properly convicted and his sentence was not excessive. Order of repatriation set aside and substituted. Cases No cases referred to. Statutes Penal Code (cap 63) sections 26A, 278 A Advocates Appellant absent not wishing to be present Onyango for the Respondent
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| History Magistrate: | B Okaya (Miss) |
| History Advocates: | Both Parties Represented |
| History County: | Nairobi |
| Case Outcome: | appeal against conviction and sentence dismissed. |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT
AT NAIROBI
(CORAM: PORTER J)
CRIMINAL APPEAL NO 1446 OF 1986
BETWEEN
TARIMO................................ APPELLANT
AND
REPUBLIC.................................RESPONDENT
JUDGMENT
(Appeal from the original conviction and sentence of the Resident Magistrate’s Court at Nairobi, B Okaya (Miss) dated 14th October 1986, in Criminal Case No 2955 of 1986)
June 15, 1989, Porter J delivered the following Judgment.
The appellant was convicted in the court below of theft of a motor cycle contrary to section 278A of the Penal Code, and sentenced to 12 months imprisonment and 6 strokes. The learned trial Magistrate purported to make an order for repatriation.
One day after the theft, the appellant was seen riding as a passenger on the stolen motor bike by two Police Officers who saw them twice. On the first occasion they saw them turn off into the bush when approaching a road block, and later emerging from a side road when they abandoned the motor cycle and ran off.
The learned trial Magistrate was satisfied with these identifications, and on my own assessment of the record I would agree. It was daylight, and the distance involved was not far. The evidence negatived the account of the appellant. The appellant was properly convicted and sentence was not excessive.
As to the purported order for repatriation, the learned trial Magistrate gets his jurisdiction for such an order from S 26 A of the Penal Code. He has no jurisdiction to make an order for the repatriation of the appellant.
He only has jurisdiction to make a recommendation to the Minister that the appellant be removed from and remain out of Kenya either immediately, or upon completion of any sentence of imprisonment imposed.
In this case, I would agree with the learned trial Magistrate that such a recommendation is required in this case. But I would not agree with his way of making the order. The matter remains in the discretion of the Minister.
The “order for repatriation” is therefore set aside and an order is substituted that the court recommends to the Minister that the appellant be removed from and remain out of Kenya after his release.
Otherwise, appeal against conviction and sentence dismissed.
Delivered this 15th day of June, 1989
PORTER
JUDGE
I certify that this is a true copy of the original.
DEPUTY REGISTRAR
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