[2020] KEHC 10268 (KLR)
The court found that the trial magistrate erred by not considering the option of a fine for a misdemeanor offence, as required by the Sentencing Policy Guidelines. The offence of obtaining by false pretences is a non-serious offence, and the imposition of a custodial sentence without the option of a fine was...
Source-derived case information.
- Citation
- [2020] KEHC 10268 (KLR)
- Parties
- Appellant: Elizabeth Wambui Kamichar; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E024 of 2020
- Procedural Posture
- Criminal Appeal / Ruling on Application for Bail Pending Appeal and Sentence Review
- Outcome
- sentence reduced to period already served
- Judges
- CJ Kendagor, AM Cockar
- Legal Topics
- Bail Pending Appeal, Sentencing Guidelines, Misdemeanour Offences, Obtaining by False Pretences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Wambui Kamichar
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Bail Pending Appeal and Sentence Review
Legal Issues
- 1 Whether the applicant should be granted bail pending appeal.
- 2 Whether the sentence imposed was appropriate for a misdemeanor offence under section 313 of the Penal Code.
- 3 Whether the trial court erred by not providing an option of a fine for a non-serious offence.
Ratio Decidendi
The court found that the trial magistrate erred by not considering the option of a fine for a misdemeanor offence, as required by the Sentencing Policy Guidelines. The offence of obtaining by false pretences is a non-serious offence, and the imposition of a custodial sentence without the option of a fine was contrary to established sentencing principles. Given that the applicant had already served a substantial part of her sentence, the court reduced the imprisonment term to the period already served.
Court Disposition
sentence reduced to period already served
Orders
- The imprisonment term is reduced to the period already served.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL CASE NO. E024 OF 2020
ELIZABETH WAMBUI KAMICHAR.......................APPELLANT
VERSUS
REPUBLIC.................................................................RESPONDENT
(Being application against the sentence of Hon. B. M. Ekhubi – PM on Thika CM’s Criminal Case 5143 of 2017)
RULING
1. The Applicant filed a Notice of Motion dated 13th October 2020. It was brought under Certificate of Urgency. The Applicant sought leave to file appeal out of time. That has been granted.
2. The other order requested was for bail pending appeal and such further or other relief that the court may deem just and fair to grant in the circumstances.
3. Since Applicant has pursued challenge on sentence, the court has considered same due to the fact it was a short sentence of 3 months passed in September 2020.
4. I considered that the Applicant was found guilty and convicted of the offence of obtaining By False Pretences contrary to section 313 of the Penal Code. She was sentenced to 3 months imprisonment without an option of a fine.
5. The offence is a misdemeanor if court was of the view 3 months imprisonment could serve as punishment, nothing stopped it from considering an option of a fine. The Sentencing Policy Guidelines is very clear. Where a person is convicted of a misdemeanor which is a non-serious offence, the court should give such person the option of paying a fine in default of which an imprisonment term is given. The learned trial magistrate in the circumstances overlooked an important principle in sentencing.
6. I have considered that the Applicant has served a substantial part of her sentence.
7. Accordingly, I reduce the imprisonment term to the period already served.
8. Those are the orders of this court.
DATED, SIGNED AND DELIVERED THROUGH TEAMS THIS 10TH DAY OF NOVEMBER, 2020
LESIIT, J.
JUDGE
In the presence of
Kinyua, CA
Mr. Mutuma For the State
Applicant in person present
LESIIT, J
JUDGE