[2005] KEHC 1065 (KLR)
The High Court found that while the sentence on count 1 (possession of forged currency) was within the law and could not be faulted, the sentence on count 2 (unlawful presence in Kenya) was manifestly excessive because the trial magistrate imposed the maximum sentence without considering the statutory alternative of...
Source-derived case information.
- Citation
- [2005] KEHC 1065 (KLR)
- Parties
- Applicant: Christopher Owere; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- ? 21 of 2005
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- sentence on count 2 revised; fine imposed; remainder of conviction and sentence upheld
- Legal Topics
- Sentencing Principles, Revision Jurisdiction, Forged Currency Offences, Immigration Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Owere
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the sentence imposed on count 2 was lawful and appropriate under the Immigration Act.
- 2 Whether the trial magistrate erred by not providing an option of a fine for count 2 as permitted by law.
- 3 Whether the grounds raised by the applicant are within the scope of revision jurisdiction.
Ratio Decidendi
The High Court found that while the sentence on count 1 (possession of forged currency) was within the law and could not be faulted, the sentence on count 2 (unlawful presence in Kenya) was manifestly excessive because the trial magistrate imposed the maximum sentence without considering the statutory alternative of a fine. The law under section 13(2) of the Immigration Act provides for a maximum of one year imprisonment or a fine of Ksh.20,000 or both. The trial magistrate erred by not giving the applicant an option of a fine. Accordingly, the High Court set aside the custodial sentence on count 2 and substituted it with a fine of Ksh.10,000, or in default, six months imprisonment, to...
Court Disposition
sentence on count 2 revised; fine imposed; remainder of conviction and sentence upheld
Orders
- Sentence on count 2 set aside and substituted with a fine of Ksh.10,000 or in default six months imprisonment.
- Sentence on count 2 to run concurrently with sentence on count 1.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA Criminal Revision Case 21 of 2005
Arising from Original Bungoma SPM’S Cr. No.2298 of 2005
CHRISTOPHER OWERE…………………………………………APPLICANT VS REPUBLIC………………………………………………………RESPONDENT
RULING ON REVISION
The applicant herein, Christopher Owere, pleaded guilty to a charge containing two counts. The first count is in respect of a charge of being in possession of forged currency contrary to section 359 of the Penal code. The second count is in respect of a charge of being unlawfully present in Kenya contrary to section 13(2) of the Immigration Act.
The applicant was convicted on both counts and sentenced to serve 1 year imprisonment on each count.
The applicant has written to this Court beseeching it to interfere with the decision on revision. I have perused the grounds set out in the letter dated on 5th September 2005.
It is evident that the applicant has raised grounds of appeal which are not within the province of Revisions. However, despite that defect, I will exercise my discretionary power to peruse the proceedings that were before the subordinate court to determine the legality, correctness and propriety of the learned Senior Principal magistrate’s decision.
The law provides for a maximum sentence of 7 years imprisonment in count 1 whereas count 2 attracts a maximum sentence of 1 year imprisonment or in the alternative a fine of Ksh.20,000/= or both.
It is evidently clear that the trial Senior principal Magistrate’s decision on count 1 cannot be faulted. However, the learned trial magistrate should have given the applicant an option of a fine on count 2. I will not interfere with the decision on count 1. The sentence on count 2 is manifestly excessive because the trial magistrate gave a maximum sentence provided by law. Consequently, the sentence in count 2 is set aside and substituted with a fine of Ksh.10,000/= and in default to serve 6 months imprisonment from the date of sentence. The sentence is to run concurrently with that in count 1. Otherwise the rest of the learned Senior Principal Magistrate’s decision on conviction and sentence stands save for what I have pronounced.
Dated and delivered this 25th day of November 2005.
J. K. SERGON
JUDGE
In open Court in the presence of Mr. Onderi for the state and in the absence of the accused.