[2012] KEHC 3433 (KLR)
The trial court imposed a sentence of three years imprisonment for the offence of threats by means of a licensed communication system, contrary to Section 29 of the Kenya Information and Communication Act. However, the statute prescribes a maximum penalty of a fine not exceeding fifty thousand shillings or...
Source-derived case information.
- Citation
- [2012] KEHC 3433 (KLR)
- Parties
- Appellant: Beatrice Anyango Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 139 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- HK Chemitei
- Legal Topics
- Threats by Communication, Sentencing Error, Plea of Guilty, Statutory Sentencing Limits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Anyango Otieno
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court exceeded the statutory maximum for the offence charged.
- 2 Whether the appellant's plea of guilty and mitigation warranted a lesser sentence under the law.
Ratio Decidendi
The trial court imposed a sentence of three years imprisonment for the offence of threats by means of a licensed communication system, contrary to Section 29 of the Kenya Information and Communication Act. However, the statute prescribes a maximum penalty of a fine not exceeding fifty thousand shillings or imprisonment for a term not exceeding three months or both. The sentence of three years imprisonment was therefore unlawful and not supported by the statutory framework. The High Court found that the only lawful course was to set aside the excessive sentence and order the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The appellant is to be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATKISUMU
CRIMINAL APPEAL 139 OF 2011
BEATRICE ANYANGO OTIENO …………….………………..APPELLANT
VERSUS
REPUBLIC …………………………………………………..RESPONDENT
(From original conviction and sentence in Criminal Case number 649 of 2011 of the Senior Resident Magistrate’s Court at Bondo – M. M. Nafula – MD II PRPF)
JUDGMENT
The appellant was charged with the offence of threats by means of a licensed communication system contrary to Section 29 (A) of the Communication (Amendment) Act Number 1 of 2009.
The particulars of the offence are that on the 2nd day of September 2011 at Ramba Village in Rarieda District in Siaya County sent a message through a licensed telecommunication namely Safaricom Mobile Phone number 07181468464tomobile number0722694881 belonging to Francis Otieno Obongo using threats to wit “send this amount of money One Hundred and Fifty Thousand but we have 30 thousand from her we are kidnappers and you will get your wife“ a matter that could cause fear and torment to the said Francis Otieno Obongo.
On her own plea of guilty she was sentence to three (3) years imprisonment.
She then filed this appeal citing the following grounds:-
1. That I pray for leniency.
2. That I pray to be treated as a first offender.
3. That the appellant is a sick lady suffering from epilepsy and is getting it very difficult while serving the sentence inside Prison. In addition to that I have a young boy who is still attending primary school level in my rural home, he is staying with my mother who is a cripple, now my long-term imprisonment is a frontier to them, thus then becoming a burden to the rest of the community since my father was not in good forms with his relatives.
4. I pray that may this honourable court consider my mitigations and give me a second chance since I believe in the wise saying that once bitten twice shy and promise to be a good citizen.
When this matter came up fro hearing the learned State Counsel Mr. Meroka conceded that although she pleaded guilty the sentence meted by the trial court was not in line with the provisions of the Act. He urge me to consider allowing the appeal only in line with the Act.
I have perused Section 29 and of the Kenya Information and Communication Act Chapter 411 A of the Laws of Kenya. The conviction provides therein is” a fine not exceeding fifty thousand shillings or imprisonment for a term not exceeding three months or both”
In this case the trial court sentence the appellant to three years imprisonment.This was clearly wrong and not within the provision of the law.
I shall therefore proceed to allow the appeal by having the appellant released forthwith unless lawfully held.
Dated, signed and delivered at Kisumu this 12th day of July 2012
H. K. CHEMITEI
JUDGE
In the presence of:
Meroka State Counsel
In person Appellant
HKC/aao