[1997] KECA 173 (KLR)
The Court of Appeal held that the High Court erred in enhancing the appellant's sentence based on Act No. 11 of 1993, which increased sentences for firearm offences after the date the offence was committed. The amending Act did not provide for retroactive application, and the general principle is that a penal...
Source-derived case information.
- Citation
- [1997] KECA 173 (KLR)
- Parties
- Appellant: Elijah Maina Watuta; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 102 of 1996
- Procedural Posture
- Criminal Appeal / Second Appeal From High Court Judgment Enhancing Sentence
- Outcome
- appeal allowed
- Judges
- AM Akiwumi, GS Pall
- Legal Topics
- Sentencing Principles, Retroactive Application of Law, Firearm Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Maina Watuta
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From High Court Judgment Enhancing Sentence
Legal Issues
- 1 Whether the High Court could lawfully enhance the appellant's sentence based on a law enacted after the offence was committed.
- 2 Whether Act No. 11 of 1993, which increased sentences for firearm offences, applied retroactively.
Ratio Decidendi
The Court of Appeal held that the High Court erred in enhancing the appellant's sentence based on Act No. 11 of 1993, which increased sentences for firearm offences after the date the offence was committed. The amending Act did not provide for retroactive application, and the general principle is that a penal statute does not operate retrospectively unless expressly stated. The relevant law for sentencing is that which was in force at the time the offence was committed. Therefore, the High Court was not entitled in law to enhance the sentence as it purported to do. The original sentence imposed by the magistrate was restored.
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The sentences of ten years imprisonment imposed by the High Court are set aside.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: OMOLO, AKIWUMI & PALL, JJ.A.
CRIMINAL APPEAL NO. 102 OF 1996
BETWEEN
ELIJAH MAINA WATUTA ................................. APPELLANT
AND
REPUBLIC ..................................................... RESPONDENT
(Appeal from a judgment of the High Court of Kenya at Nairobi (Juma J) dated 14th August, 1996
in
H.C.CR.A. NO. 989 OF 1994) *****************
JUDGMENT OF THE COURT
This is a second appeal and can only be on points of law. There is no appeal against conviction and that is obviously correct. The issue was whether the learned judge of the High Court could lawfully enhance the sentence passed by the subordinate court. The offences of which the appellant was convicted of were committed on the 12th July, 1993. In December 1993, the law was changed imposing a severer sentence than that which was in force at the time when the offence was committed. The learned judge, on appeal purported to enhance the sentence to one of ten years imprisonment on the basis that the sentence imposed by the magistrate was unlawful.
With respect, we think the learned judge was in error. Act No. 11 of 1993 which increased the sentences imposed on firearm offences did not provide that it was to apply retroactively. Mrs. Oduor, for the Republic, relies on the case of PATEL V REPUBLIC [1968] EA 97, but that case deals with procedural amendments. She concedes, rightly in our view, that increasing the punishment to be awarded cannot be called a procedural amendment. She next argues that the magistrate was bound to apply the law that was operational at the time he imposed the sentence. We think that is not correct. The relevant period to be considered is the time when the offence was committed, unless the amending act says otherwise. In our view, the learned judge of the High Court was not, in law, entitled to enhance the sentence as he purported to do.We allow the appeal, set aside the sentences of ten years imprisonment imposed by the judge and restore the sentences of 51/2 years imprisonment which the learned magistrate had imposed. Those sentences will run concurrently from the date the magistrate imposed them. That was also the order of the magistrate. Those shall be our orders.
Dated and delivered at Nairobi this 22nd day of September, 1997.
R. S. C. OMOLO
............................
JUDGE OF APPEAL
A. M. AKIWUMI
.............................
JUDGE OF APPEAL
G. S. PALL
............................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR