[2017] KEHC 5580 (KLR)
The court found that the sentence of one year imprisonment imposed by the trial magistrate was illegal because it exceeded the statutory maximum penalty under section 33(d) of the Land Adjudication Act, which prescribes a fine not exceeding three thousand shillings or imprisonment for a term not exceeding six...
Source-derived case information.
- Citation
- [2017] KEHC 5580 (KLR)
- Parties
- Appellant: James Kaunga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 96 of 2017
- Procedural Posture
- Criminal Revision / Judgment
- Outcome
- sentence varied; appeal on sentence allowed
- Judges
- F Gikonyo
- Legal Topics
- Sentencing Illegality, Land Boundary Offences, Statutory Penalties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kaunga
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial magistrate exceeded the statutory maximum under section 33(d) of the Land Adjudication Act.
- 2 Whether the trial magistrate erred by not calling for mitigating reports before sentencing.
Ratio Decidendi
The court found that the sentence of one year imprisonment imposed by the trial magistrate was illegal because it exceeded the statutory maximum penalty under section 33(d) of the Land Adjudication Act, which prescribes a fine not exceeding three thousand shillings or imprisonment for a term not exceeding six months, or both. The court held that the error in the committal warrant regarding the section cited did not affect the substance of the charge, as the charge sheet had been properly amended. The court substituted the illegal sentence with a fine of Kshs. 3,000, and in default, three months imprisonment, thereby setting aside the original sentence.
Court Disposition
sentence varied; appeal on sentence allowed
Orders
- The sentence of one year imprisonment imposed by the trial magistrate is set aside.
- The applicant is sentenced to pay a fine of Kshs. 3,000, in default to serve three months imprisonment.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF MERU
CRIMINAL REVISION NO 96 OF 2017
JAMES KAUNGA …………………………………………APPELLANT
-VS-
REPUBLIC ……………………………………………….RESPONDENT
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JUDGMENT
[1] The Applicant was charged with the offence of interfering with demarcated land boundary features contrary to Section 33(d) of the Land adjudication Act CAP 284 Laws of Kenya.The case was heard and on4th May 2017, the trial Magistrate sentenced the Appellant to one year imprisonment.
[2] In the committal warrant it was erroneously stated that the Applicant was charged under section 23(a) of The Land Adjudication Act CAP 284. This is just an error on the part of the person who prepared the committal warrant because the charge sheet was amended to read Section 33(d) of the Land adjudication Act CAP 284 Laws of Kenya. Nothing turns on this error.
[3] I move to other potent grounds namely;-
(a) That the sentence is illegal for being contrary to section 33(d) of the Land adjudication Act CAP 284 Laws of Kenya;
(2) The trial magistrate did not call for mitigating reports
[4] The substantive as well as the penalty provision is Section 33(d)of the Land adjudication Act CAP 284 Laws of Kenyawhich states that;
33 “Any person who-
(d) without reasonable excuse interferes with any demarcated boundary, or defaces, removes, injures or otherwise impairs any feature of a demarcated boundary, or allows any demarcated boundary to fall into disrepair…
shall be guilty of an offence and liable to a fine not exceeding three thousand shillings or to imprisonment for a term not exceeding six months, or to both such fine and such imprisonment…”
Accordingly, a jail term of one year is clearly illegal. I will therefore, substitute the sentence to a fine of Kshs. 3, 000 in default he shall serve three (3) months imprisonment. The sentence imposed by the trial magistrate is hereby set aside. It is so ordered.
Dated, signed and delivered in open court at Meru this 31st day of May 2017.
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F. GIKONYO
JUDGE