[2017] KEHC 6270 (KLR)
The court held that the appellant was sentenced to the minimum penalty prescribed by Section 32A of the Kenya Information and Communications Act, which mandates a fine of not less than five million shillings or imprisonment for not less than ten years, or both, for severing telecommunication apparatus with intent to...
Source-derived case information.
- Citation
- [2017] KEHC 6270 (KLR)
- Parties
- Appellant: Erick Muthaura; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 85 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- KW Kiarie
- Legal Topics
- Sentencing Minimums, Plea of Guilty, Telecommunications Offences, Statutory Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Muthaura
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was lawful and appropriate under the Kenya Information and Communications Act.
- 2 Whether the erroneous citation of the charging statute prejudiced the appellant.
Ratio Decidendi
The court held that the appellant was sentenced to the minimum penalty prescribed by Section 32A of the Kenya Information and Communications Act, which mandates a fine of not less than five million shillings or imprisonment for not less than ten years, or both, for severing telecommunication apparatus with intent to steal. The court found that the erroneous citation of the statute as the 'Kenya Communication Act of 2012' instead of the 'Kenya Information and Communications Act' did not prejudice the appellant, as he understood the charge and responded to it. The error was deemed curable under Section 382 of the Criminal Procedure Code. Consequently, the sentence imposed was lawful, and...
Court Disposition
appeal dismissed
Orders
- The appeal against sentence is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CRIMINAL APPEAL NO.85 OF 2016
ERICK MUTHAURA ................................................ APPELLANT
VERSUS
REPUBLIC ..............................................................RESPONDENT
(From the original conviction and sentence in criminal case No. 571 of 2016 of the Chief Magistrate’s Court a Isiolo by Hon. J. M Irura – Senior Resident Magistrate)
JUDGMENT
ERICK MUTHAURA, the appellant, was convicted on own plea of guilty for the offence of severing with intent to steal contrary to section 32A of the Kenya Communication Act of 2012(sic).
The particulars of the offence were that on 15th December 2014 at Forest area Kasarani route, in Isiolo County jointly with intent to commit mischief, tampered with telecommunication plant namely cable by cutting it, the property of Telkom Kenya Limited.
The appellant was fined Kshs.5 million in default to serve 10 years imprisonment.
The appeal is against sentence only.
The Act under which the appellant was charged was not correctly cited. It is known as theKenya Information and Communications Act.I have perused the record and I am satisfied that the error did not prejudice the appellants in any way . He understood the charge and responded to it and the facts thereof. The error is curable under section 382 of the Criminal Procedure Code.
Section 32A of Kenya Information and Communications Act states:
A person who, with intent to steal, severs any telecommunication apparatus or other works under the control of a licensee, commits an offence and is liable, on conviction, to a fine of not less than five million shillings or to imprisonment for a term of not less than ten years or to both.
The appellant was sentenced to the minimum prescribed penalty. Any other lower sentence would amount to an illegal sentence.
The appeal is therefore dismissed.
DATEDatMERUthis 28th day ofApril, 2017
KIARIE WAWERU KIARIE
JUDGE