[2017] KEHC 713 (KLR)
The court found that the sentence imposed by the trial court was lawful and in strict compliance with the mandatory minimum sentence prescribed by Section 95 of the Wildlife Conservation and Management Act. The applicant was given an opportunity to mitigate, and the trial court considered the mitigation advanced....
Source-derived case information.
- Citation
- [2017] KEHC 713 (KLR)
- Parties
- Applicant: Josiah Miriti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 9 of 2017
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- BB Limo
- Legal Topics
- Wildlife Offences, Sentencing Principles, Minimum Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josiah Miriti
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed by the trial court was lawful and open to revision.
- 2 Whether the applicant was afforded an opportunity to mitigate before sentencing.
- 3 Whether the court has discretion to impose a sentence below the statutory minimum.
Ratio Decidendi
The court found that the sentence imposed by the trial court was lawful and in strict compliance with the mandatory minimum sentence prescribed by Section 95 of the Wildlife Conservation and Management Act. The applicant was given an opportunity to mitigate, and the trial court considered the mitigation advanced. However, the law does not permit the court to impose a sentence below the statutory minimum. As such, there was no legal basis to interfere with or revise the sentence, and the application for revision was without merit.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is disallowed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT CHUKA
CRIMINAL REVISION NO. 9 OF 2017
(From original conviction and sentence in
CiminalCaseNo. 864of 2014 of the Chuka
Magistrate'sCourt at Chuka.)
JOSIAH MIRITI................................APPLICANT
VERSUS
REPUBLIC.....................................RESPONDENT
R U L I N G
1. JOSIAH MIRITI the applicant herein along two other persons were charged with being in possession of Wildlife Trophy contrary to Section 95 of the Wildlife Conservation and Management Act 2013 vide Chuka Senior Principal Magistrate's Court No. 864 of 2014. The applicant and co-accused denied the charge but upon trial the applicant was found guilty and convicted. He was sentenced to serve five years imprisonment or pay a fine of Kshs.2 million.
2. The applicant has now moved this court for revision of his sentence under the provisions of Sections 362 and364 of the Criminal Procedure Code. The grounds upon which the application has been brought are as follows namely:-
(i) That he is a sole bread winner.
(ii) That he is old and may not survive the sentence
(iii) That he is remorseful
(iv) That he has been in custody since 2014 and that he never got a chance to mitigate.
3. This court did call for the lower court file and upon perusal established that indeed the applicant was found guilty of the offence under Section 95 of the Wildlife Conservation and Management Act No. 47of2013. The provision provide as follows:-
" 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 issue 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 onemillion shillings or imprisonment of a term of not less than 5 years or to both such imprisonment and fine."
4. The trial court upon finding the applicant guilty really had no option but to impose a sentence prescribed by law and where a statute prescribes a minimum sentence, the court's hands are tied because a court cannot pass a sentence below the prescribed limit. The propriety, legality and correctness of the sentence passed by the trial court in this instance cannot be challenged because the same was proper in accordance with the law as cited above.
5. I have also noted from the proceedings that the applicant herein was give a chance to mitigate and the only mitigation factor raised was that he had been in custody for two years. The trial court duly considered the mitigation raised but again as I have said the trial court's hands were tied by the minimum sentence prescribed by law. I have perused through the proceedings and the same are regular and I find no basis to interfere with the sentence passed.
In the premises the application for revision of sentence is not merited. The same is disallowed for the above reasons.
Dated and delivered at Chuka this 29th day of November, 2017.
R.K. LIMO
J UDGE
29/11/2017
Ruling signed, dated and delivered in open court in the presence of the Applicant in person and Machirah for state.
R.K. LIMO
JUDGE
29/11/2017