[2004] KEHC 1208 (KLR)
The court found that the trial magistrate failed to properly exercise discretion by not considering the appellant's guilty plea and first offender status, both of which are significant mitigating factors. The imposition of a custodial sentence in these circumstances was deemed excessive and harsh. The High Court...
Source-derived case information.
- Citation
- [2004] KEHC 1208 (KLR)
- Parties
- Appellant: Alice Nungari Kianda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 550 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Sentencing Principles, Immigration Offences, Plea of Guilty, First Offender, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Nungari Kianda
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of four months imprisonment for possession and use of a forged passport was excessive in the circumstances.
- 2 Whether the trial court properly exercised its discretion in imposing a custodial sentence instead of a fine.
Ratio Decidendi
The court found that the trial magistrate failed to properly exercise discretion by not considering the appellant's guilty plea and first offender status, both of which are significant mitigating factors. The imposition of a custodial sentence in these circumstances was deemed excessive and harsh. The High Court therefore set aside the custodial sentence and substituted it with a fine, holding that the interests of justice would be better served by a non-custodial sentence in light of the appellant's mitigation and the nature of the offence.
Court Disposition
appeal allowed
Orders
- The sentence of four months imprisonment is set aside.
- The appellant is sentenced to a fine of Ksh.10,000 on each count, in default four months imprisonment on each count.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 550 OF 2004
(From original conviction (s) and Sentence(s) in Criminal case No. 2736 of 2004
of the Chief Magistrate’s Court at Nairobi (A. O. Muchelule –C.M.)
ALICE NUNGARI KIANDA……..….……………….…………..APPELLANT
VERSUS
REPUBLIC…………………… …………………………..……..RESPONDENT
J U D G M E N T
The Appellant ALICE NUNGARI KIANDA was convicted of two offences under the Immigration Act on her own plea of guilty. In the first count she was charged with KNOWINGLY POSSESSING AND USING A FORGED PASSPORT contrary to Section 13(1) (d) of the Immigration Act. In count two she was charged with KNOWINGLY POSSESSING AND USING A PASSPORT WITH A FORGED ENDORSEMENT contrary to Section 13(1) (d) of the same Act. She was sentenced to serve four months imprisonment in each count and the sentence was ordered to run concurrently.
The Appellant was dissatisfied with the sentence and so filed this Appeal. Having noted that the sentence imposed against the Appellant was very short, this Appeal was admitted to hearing and given a date for the hearing on priority.
It is the Appellant’s submission that the sentence was excessive on grounds that the offence was petty. While I do not agree with the counsel for the Appellant, MR. MARIARIA, that the offence is petty, I do agree that it is a misdemeanor and that an option of a fine is one of the sentences a court can impose.
MR. OLENGO, learned counsel for the State did not oppose this Appeal. He submitted that since the Appellant was a first offender and the offence called for a fine, the sentence was uncalled for. While I agree that the learned trial magistrate has the power to impose either a fine or a term of imprisonment not exceeding 3 years, under Section 13(1) (d) of the Act, such a discretion should be exercised fairly and judicially.
It is on record that the Appellant pleaded guilty to the charge thus saving the court’s time. It is also on record that the Appellant was a first offender. Both factors, if considered by the trial court would have vitiated against the imposition of a custodial sentence. I find the sentence imposed in the circumstances was excessive and harsh and therefore this court has power to interfere with the same.
The appeal against sentence is allowed. The sentence of 4 months imprisonment is set aside.
The court substitutes sentence with a fine of Ksh.10,000/- in each account in default four months imprisonment on each count.
Orders accordingly.
Dated at Nairobi this 30th day of November 2004.
LESIIT
JUDGE