[2022] KEHC 13576 (KLR)

Erupon v Republic (Criminal Appeal 2 of 2020) [2022] KEHC 13576 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13576 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Appeal 2 of 2020

HPG Waweru, J

October 6, 2022

Between

Simon Lokiru Erupon

Appellant

and

Republic

Respondent

Judgment

1. The appellant herein, Simon Lokiru Erupon, was convicted after trial of two offences under sections 95 and 99(2) (d) & (3) of the Wildlife Conservation and Management Act, 2013 (the Act). On November 19, 2019 he was sentenced as follows –i.In Count I fined KShs 1 million, “in default to imprisonment for three (3) years as provided by the law.”ii.In Count II fined KShs 20 million “in default to imprisonment for ten (10) years.”“The default sentences to run concurrently.”

2. The appellant has appealed only against the sentences, particularly the default terms of imprisonment. Learned counsel for the Respondent does not support the default sentences for being patently unlawful.

3. Section 95 of the Act provides –“95. Any person who keeps or is found in possession of a wildlife trophy or deals in a wildlife trophy, or manufactures any item from a trophy without a permit issued under this Act or exempted in accordance with any other provision of this Act, commits an offence and shall be liable upon conviction to a fine of not less than one million shillings or imprisonment for a term of not less than five years or to both such imprisonment and fine.”And section 99(3) of the Act provides –“99. (3)Any person who contravenes any provisions of this section commits an offence and shall be liable upon conviction for category A wildlife to a fine of not less than ten million shillings or to imprisonment for not less than five years and for other wildlife categories to a fine of not less than one million shillings or to imprisonment of not less than two years or to both such imprisonment and fine.”In both sections quoted above, the trial court is at liberty to fine the convict the minimum prescribed fine, OR to sentence him to the prescribed minimum term of imprisonment, OR to both fine and sentence him to imprisonment (except in respect to Category A wildlife under section 99(3) just quoted above). A term of imprisonment awarded in addition to a fine is not a default sentence; it is a separate and distinct punishment in addition to the fine. A default sentence on the other hand, is what is awarded should the offender be unable to pay the fine imposed.

4. A trial court must make it abundantly clear by its language whether it is only imposing a fine (which must include a lawful default sentence), orwhether it is imposing a custodial sentence, orwhether it is imposing botha fine (with a lawful default sentence of imprisonment) anda separate term of imprisonment. It is a matter of clarity of language.

5. Terms of imprisonment in default of payment of fines, in the absence of express provisions in any written law relating thereto, are governed by section 28(2) of the Penal Code, and currently cannot exceed 12 months imprisonment for any fine exceeding KShs 50,000/00. It is also to be noted that sentences in default of payment of fines must be served consecutively, not concurrently (see the proviso to section 37 of thePenal Code). There are no express provisions in sections 95 and 99(3) of the Act under which the appellant was sentenced relating to terms of imprisonment in default of payment of fines.

6. The upshot is that in the present case the sentences of imprisonment awarded in default of payment of the fines imposed were unlawful. They could not lawfully exceed 12 months in each count. The order of the trial court that the default sentences run concurrently was also unlawful. They could only run consecutively. As it happens the Appellant has already long served the lawful cumulative default sentence of twenty-four (24) months imprisonment.

7. The upshot is that this appeal against sentence is partially allowed by setting aside the default sentences of three (3) and ten (10) years imprisonment respectively, and substituting therefor twelve (12) months imprisonment in each count, the default sentences to run consecutively from the date of sentencing by the trial court(a cumulative term of 24 months imprisonment) .

8. As already seen, the appellant has now long served the cumulative default sentence of twenty-four (24) months imprisonment. He shall therefore be set at liberty forthwith unless otherwise lawfully held. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 5TH DAY OF OCTOBER, 2022. H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 6TH DAY OF OCTOBER, 2022.