[2014] KEHC 812 (KLR)
The court found that while the conviction for trespass was proper and the appellants had admitted to the offence, the trial court erred by imposing a custodial sentence without considering the statutory option of a fine. Section 11 of the Trespass Act allows for either imprisonment or a fine, and the circumstances...
Source-derived case information.
- Citation
- [2014] KEHC 812 (KLR)
- Parties
- Appellant: Joseph Kipkemboi Rob; Appellant: Joel Kiptoo Rob; Appellant: David Kimeli Rob; Appellant: Joel Kiplangat Rob; Appellant: Musa Kibet Rob; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 20 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied; fine imposed in lieu of part custodial sentence
- Legal Topics
- Trespass, Sentencing, Custodial Sentence, Option of Fine
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kipkemboi Rob
Appellant
Joel Kiptoo Rob
Appellant
David Kimeli Rob
Appellant
Joel Kiplangat Rob
Appellant
Musa Kibet Rob
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellants for trespass was harsh or excessive in the circumstances.
- 2 Whether the trial court erred in failing to provide an option of a fine as stipulated under the Trespass Act.
Ratio Decidendi
The court found that while the conviction for trespass was proper and the appellants had admitted to the offence, the trial court erred by imposing a custodial sentence without considering the statutory option of a fine. Section 11 of the Trespass Act allows for either imprisonment or a fine, and the circumstances did not warrant a purely custodial sentence. The appellate court therefore substituted the sentence with an order that the appellants, having served 9 days, should pay a fine of Kshs. 500 each, or in default, serve the remaining 21 days in custody.
Court Disposition
sentence varied; fine imposed in lieu of part custodial sentence
Orders
- Each appellant to pay a fine of Kshs. 500 in addition to the 9 days already served.
- In default of payment, appellants to serve the remaining 21 days in custody.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL APPEAL NO. 20 OF 2014
JOSEPH KIPKEMBOI ROB................................................1ST APPELLANT
JOEL KIPTOO ROB............................................................2ND APPELLANT
DAVID KIMELI ROB............................................................3RD APPELLANT
JOEL KIPLANGAT ROB......................................................4TH APPELLANT
MUSA KIBET ROB...............................................................5TH APPELLANT
VERSUS
REPUBLIC..................................................................................RESPONDENT
(From the original conviction and sentence in Criminal Case No. 106 of 2013 in the Senior Resident Magistrate's court at Tamu)
J U D G M E N T
The appellants were charged with the offence of trespass contrary to section 3 (1) as read with section 11 of the Trespass Act Chapter 294 Laws of Kenya. They were accused of trespassing into land parcel No. Kisumu/Fort Tenan 68/455 owned by one Joseph Aluoch Agenga. They were then sentenced to 30 days imprisonment without any option of fine hence this appeal.
During the hearing of the appeal, counsel for the appellants abandoned the rest of the grounds and limited himself to the last ground namely that the sentence was harsh in the circumstances and that the court should have given an option of fine.
Having read the proceedings, the counsel for the appellants was right in abandoning the other grounds as the case against the appellants was proved sufficiently. The appellants admitted that they trespassed onto the complainant's parcel of land.
But was the sentence excessive? Section 11 of the Trespass Act provides two modes, namely imprisonment for a period of not less than two months or a fine not exceeding Kshs. 500/=. The court chose the custodial sentence. I was told that the appellants had served 9 out of the 30 days they had been imprisoned.
Taking into consideration all the factors herein, I do order that beside the 9 days they had served the appellants shall pay a fine of Kshs. 500/= (Five Hundred) each and in default they complete the remaining 21 days in custody.
Orders accordingly.
Dated, signed and delivered at Kisumu this 27th day of November, 2014.
H.K.CHEMITEI
JUDGE