[2017] KEHC 9350 (KLR)
The court found that while the offences of smuggling human beings are serious, the trial magistrate's imposition of an additional mandatory custodial sentence on a first offender who pleaded guilty was harsh. The court set aside the additional custodial sentence of six months imprisonment for counts I and II,...
Source-derived case information.
- Citation
- [2017] KEHC 9350 (KLR)
- Parties
- Appellant: Julius Kaaweesi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 169 of 2017
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- Application declined in part; additional custodial sentence in counts I and II set aside; other sentences remain undisturbed.
- Legal Topics
- Sentencing Principles, First Offender, Plea of Guilty, Revision of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Kaaweesi
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the additional mandatory custodial sentence imposed on the appellant, a first offender who pleaded guilty, was harsh and excessive.
- 2 Whether the fine imposed in Count III was excessive or harsh.
Ratio Decidendi
The court found that while the offences of smuggling human beings are serious, the trial magistrate's imposition of an additional mandatory custodial sentence on a first offender who pleaded guilty was harsh. The court set aside the additional custodial sentence of six months imprisonment for counts I and II, recognizing the appellant's plea of guilty and first offender status as significant mitigating factors. However, the court held that the fine imposed in Count III was not excessive given the statutory maximum, and the period already served by the appellant was insufficient to serve as a deterrent. The application for further revision was declined, but the appellant was allowed to...
Court Disposition
Application declined in part; additional custodial sentence in counts I and II set aside; other sentences remain undisturbed.
Orders
- The additional custodial sentence of six months imprisonment in counts I and II is set aside.
- All other sentences imposed by the trial court remain undisturbed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO. 169 OF 2017
JULIUS KAAWEESI………..…………………………………..APPELLANT
VERSUS
REPUBLIC …….………………….………………………….RESPONDENT
RULING
I have considered the application for revision. Counts I and II relate to smuggling of human beings which are serious offences.
In sentencing the Applicant, the trial court took into consideration that he had saved court’s time by pleading guilty. The magistrate however in addition to the fine imposed an additional mandatory custodial sentence. This in my view was harsh as in any event, the Applicant was a first offender.
In Count III, he was fined Kshs. 600,000/= in default to serve one year imprisonment against a possible fine of Kshs. 5 million in default serve 5 years imprisonment or both. This cannot be deemed as so harsh a sentence.
My view is that the Applicant has only been in prison for almost 2 months which is not sufficient period to serve as deterrence. He can renew his application after serving at least 6 months imprisonment.
But with regard to counts I and II, for the reason that he pleaded guilty and was a first offender, I hereby set aside the additional custodial sentence of 6 months imprisonment. All the other sentences remain undisturbed.
I am aware that the Applicant tendered a paid-up air ticket in mitigating this application. But this was done on a ‘without prejudice’ basis. He is advised to reserve the ticket until such a time, probably after six months, if he will succeed in the renewed application.
As at now, the application is declined save the setting aside of the additional sentences in counts I and II.
Dated and Delivered at Nairobi this 4th day of August, 2017
G.W. NGENYE-MACHARIA
JUDGE
In the presence of;
1. Applicant present in person
2. M/s Sigei for the Respondent.