https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8451

Chandamoe & 2 others v Republic (Criminal Appeal E001 of 2026) [2026] KEHC 8451 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEHC 8451 (KLR) Republic of Kenya In the High Court at Marsabit Criminal Appeal E001 of 2026 FR Olel, J June 17, 2026 Between Samuel Chandamoe 1st Appellant Hosea Emekwi 2nd Appellant Amos Aite 3rd Appellant and Republic Respondent (Being an appeal arising from the conviction and sentence of Hon C Wekesa (SPM), in Marsabit Principal Magistrate Court Criminal Case No E035 Of 2025, delivered on 25th Novemeber 2025) Judgment A. Introduction 1.The Appellant’s herein, Samuel Chadamoe, Hosea Emekwi & Amos Aite were jointly charged with the offence of being entering into a protected area without a permit and conveying a trap into a protected area without a permit contrary to section 102(1)(a)&(f) as read with section 105 of the wildlife conservation and management Act, 2013, CAP 376 laws of Kenya and on count (iii) were charged with the offence of undertaking extractive activities of illegal fishing without a permit contrary to section 102(1),(g) as read with section 105 of the aforestated Act. The said acts were alleged to have occurred on the 4th day of Ocotber 2025 at around 0820hrs, at Alliaby area within the territorial waters of the gazette protected area of sibiloi National Park within Marsabit County, GPS coordinates 37N 0193636 UTM 0410851. 2.On the day plea was taken, the charge was read out to the appellant’s, and they all pleaded guilty on each count. After the facts were read out to them, they again affirmed the said facts were correct and a plea of guilt was entered against each on them on account of their own admission. After mitigation the said appellants were sentenced to;a.On count I; Each to pay a fine of Kshs.100,000/= or in default to serve a sentence of 12 months.b.On count II; Each to pay a fine of Kshs.50,000/= or in default to serve a sentence of 6 months.c.On count III; Each to pay a fine of Kshs.50,000/= or in default to serve a sentence of 6 months.(The sentences were to run concurrently) 3.Being dissatisfied with the said conviction and sentence passed, the appellants filed this Appeal and relied on the grounds raised in the petition of appeal, that;a.That they pleaded guilty at trial.b.That the learned trial Magistrate erred in law and fact by failing to consider their mitigation and never accorded them a chance to get the pre-sentence report. 4.The Appellants thus prayed that their Appeal be allowed, his conviction and sentence be set aside, and he be set free. B. Parties Submissions 5.The Appellant’s orally submitted that they were only challenging the sentence passed, which they deemed to be harsh and excessive, when the circumstances of this case are considered. They were illiterate and were not aware that they had trespassed into the protected area while fishing and thus prayed to be forgiven since they were first time offenders. They further urged the court to consider their plight with sympathy since they were the soul bread winners of their family, who had suffered as a result of their incarceration. 6.The state counsel did not oppose this appeal and left it for the courts discretion to determine the same. C. Determination 7.This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence, and/or see their demeanor. This court is guided by various established citations, including Okeno Vs. Republic (1927) E.A 32 & Pandya Vs. Republic (1975) EA 366 & Peter’s vrs Sunday Post (1958) E.A. 424. 8.The appellant’s pleaded guilty and confirmed that the facts read out concerning their indiscretion were correct and thus have correctly urged the court to only review the sentence passed. As regards the sentence, This Court is guided by the principles in the Court of Appeal case of Bernard Kimani Gacheru vs. Republic [2002] eKLR where it was stated as follows:“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” 9.The Court of Appeal in Thomas Mwamba Wanyi Vs Republic (2017) eKLR also cited the decision of the Supreme Court of India in Alister Antony Pereira Vs The state of Maharastra at paragraph 70 – 71 where the court held;“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate and proportionate sentences commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles; twin objective of sentencing policy is deterrence and correction. What sentence would meet the end of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of crime, motive for the crime, nature of the offence and all the attendant circumstances. The principle of proportionality by sentencing a crime done is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment must bear relevant influence in determining the sentence of the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.” 10.The sentence passed by the trial court was valid and was not excessive when considering the circumstance of this case. Be that as it may, while balancing the principal of deterrence and correction, and also considering that social background of the appellants, I do find that the period already served in custody of eight months is sufficient punishment and order that they be released forthwith unless otherwise lawfully held. D. Disposition. 11.This Appeal is therefore successful, and the orders that commend themselves are that;(a)The Appellants’ conviction is upheld and their sentence is reduced to the period already served of eight months.(b)The Appellants shall be set free forthwith unless otherwise lawfully held 12.It is so ordered. JUDGMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MARSABIT THIS 17TH DAY OF JUNE 2026.FRANCIS RAYOLA OLELJUDGEDELIVERED ON THE VIRTUAL PLATFORM, TEAMS THIS17TH DAY OF JUNE 2026.In the presence of;…………………………………… Appellants’………………………………….For O.D.P.P………………………………….Court Assistant