[2018] KEHC 250 (KLR)
The court found that although the appellants had admitted to the offences and were sentenced to fines or imprisonment, they had already served seven months in prison. Considering their circumstances and the period already served, the court determined that the sentence should be reduced to the term already served....
Source-derived case information.
- Citation
- [2018] KEHC 250 (KLR)
- Parties
- Appellant: Bigirimana Eric; Appellant: Nimpagaritse Olivier; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 26 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced to term served; appellants to be repatriated
- Judges
- LN Mutende
- Legal Topics
- Immigration Offences, Unlawful Presence, Employment Without Permit, Failure to Register Foreign National
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bigirimana Eric
Appellant
Nimpagaritse Olivier
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was illegal or unlawful.
- 2 Whether the appellants' circumstances warranted interference with the sentence imposed by the lower court.
- 3 Whether the appellants should be repatriated after serving part of their sentence.
Ratio Decidendi
The court found that although the appellants had admitted to the offences and were sentenced to fines or imprisonment, they had already served seven months in prison. Considering their circumstances and the period already served, the court determined that the sentence should be reduced to the term already served. The court also ordered that the appellants be repatriated to Burundi, their country of origin, as further imprisonment or fines would not serve the interests of justice given their inability to pay and their personal circumstances.
Court Disposition
sentence reduced to term served; appellants to be repatriated
Orders
- The sentence imposed by the lower court is set aside and substituted with a sentence of the term already served.
- Both appellants shall be repatriated to Burundi, their country of origin.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL APPEAL NO. 26 OF 2018
1. BIGIRIMANA ERIC)
2. NIMPAGARITSE OLIVIER ).............APPELLANTS
VERSUS
REPUBLIC..............................................RESPONDENT
(Being an Appeal from Original Conviction and Sentence inMutomo Senior Principal Magistrate’s Court Criminal Case NO. 152 of 2018by Hon Z.J. Nyakundi (SPM)on5/4/2018).
J U D G M E N T
1. Bigirimana Eric (1st appellant) and Nimpagaritse Olivier (2nd Appellant) were jointly charged with three counts thus:-
Count 1 - Being unlawfully present in Kenya contrary to section 53(1) (J) (2) of the Kenya Citizenship and Immigration Act No. 12 of 2011.
Count 2- Not being Kenyan citizens, engaging in employment without being authorized by work permit contrary to section 53(1) (m) (2)of theKenya CitizenshipandImmigration Act No. 12of2011.
Count 3– Failure to register as Foreign National contrary to Section 56(2) as read with Section 56(3) of the Kenyan CitizenshipandImmigration Act 2011 and Regulations 46 of thereto.
2. They admitted the charges and were sentenced to pay a fine of Kshs. 30,000/= or in default to serve one (1) year imprisonment on each count. Sentences were to run consecutively.
3. Aggrieved, they now mitigate onsentence on the grounds that;-
They come from a humble background such that they cannot raise funds to pay the fines.
They have families in their country (Burundi) that they support.
4. At the hearing they prayed to be repatriated to their country.
5. The State through learned State Counsel, Mr. Mamba opposed the appeal. He urged that the sentence meted out was lenient.
6. I have considered rival submissions of both the Appellants and the Respondent (State). I also do note that a sentence passed by the Lower Court can only be interfered by the Appellate Court if it is illegal or unlawful (see Ogolla s/o Owour versus Republic [1954] EACA 270).
7. I have taken into consideration circumstances in which the offence was committed and the fact that the appellants have now served seven (7) months imprisonment. I therefore set aside the sentence meted out and reduce it to the term already served. Both appellants will be repatriated to Burundi,their country of origin.
Dated, Signed and Delivered at Kitui this 4th day of December, 2018.
L. N. MUTENDE
JUDGE