[2011] KEHC 943 (KLR)

REPUBLICOF KENYA

IN THE HIGHCOURT OF KENYA

AT ELDORET

[Coram: F. Azangalala J.]

CRIMINAL APPEAL NO. 183 OF 2010

BETWEEN

KENNEDY OTIENO ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPEALLANT

AND

REPUBLIC::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: REPUBLIC

[Being an appeal from the Ruling of the Principal Magistrate –

D. K. Kemei dated 23rd November, 2010 at Eldoret Chief Magistrate’s

Court in CRC. No. 5665 of 2010]

JUDGMENT

Kennedy Otieno, the appellant, was charged in the Chief Magistrate’s Court at Eldoret with the offence of being in possession of infringing copies of Musical Works otherwise than for private and domestic use contrary to section 28 (1) (f) as read with section 35 (5) of the Copy Rights Act No. 12 of 2001. It was alleged in the particulars of the charge that the appellant on 18th November, 2010 at Nangili township in Lugari District within Western Province, was found in possession of eleven (11) CDs of Bongo Mix and Kidum and other local artists, when the copy right of Times Square Entertainment was subsisting to the said works in contravention of the provisions of the Act.

The appellant appeared before K.D. Kuto (D.M. II Prof.) and pleaded guilty to the charge. The prosecution was not however ready with the facts of the offence and applied to state them on 29th November, 2010. The Honourable Magistrate however, ordered that facts be stated on 22nd November, 2010. Come that day, the appellant appeared before D.K. Kemei (P.M.) and the prosecutor narrated the following facts:-

“Accused was arrested on 18th November, 2010 at Nangili Town by officers from Music Copyright Society of Kenya when they found him playing Bongo Mix Kidum songs all totaling eleven (11) CDs without authority of Times Copy Right Entertainment. He was escorted to Turbo Police Station where he was charged. The 11 CDs are produced as exhibits.”

When the appellant was invited to admit, dispute or explain those facts, he informed the learned Principal Magistrate that the facts were correct. The learned Principal Magistrate then convicted the appellant on his own plea. He next received the prosecutor’s statement on sentence and the appellant’s mitigation followed with a fine of shillings one hundred thousand (100,000/=) in default to serve two (2) years imprisonment. The learned Principal Magistrate further ordered that the recovered items be destroyed at the expiry of fourteen days (14).

The appellant was dissatisfied with both his conviction and sentence and has appealed to this court through M/s Buluma and Company Advocates on the main grounds that the facts as stated by the prosecutor did not support the charge; that the procedure adopted in recording the appellant’s plea was defective and that the sentence was manifestly excessive.

When the appeal came up before me for hearing on 6th October, 2011, Mr. Oluoch, learned Senior Deputy Prosecution counsel, did not support the appellant’s conviction and sentence.

I have considered the record and re-evaluated the proceedings before the learned Principal Magistrate. Having done so, I find and hold that the facts as stated by the prosecution did not indeed disclose any offence under the Copy rights Act No. 12 of 2001. The facts stated that the appellant was found playing Bongo Mix Kidum songs without authority. The prosecution did not suggest that the appellant did not have the said CDs for domestic or private use. Merely playing the songs would not Constitute an offence under the said Act.

The record further shows that when the appellant appeared before the learned Principal Magistrate on 22nd November, 2010, he was not reminded of the charge which had been read to him before by Hon. K.D Kuto,(D.M. II Prof.). The learned Principal Magistrate merely proceeded to receive the facts which were stated by the prosecutor. In my view, he committed a procedural flaw especially as he had himself not taken the appellant’s plea initially.

On sentence, I have no hesitation in finding that the same was manifestly excessive in the circumstances. I say so, because, the learned Magistrate imposed the maximum sentence the Act permits under the section. It is elementary that the maximum sentence is only appropriate for the worst offenders. I do not think that the appellant was such an offender. In the premises, if the plea had been unequivocal, I would have interfered with the sentence.However, I have found that the facts stated by the prosecutor did not disclose any offence. The conviction of the appellant was unsafe. The same cannot be upheld. The conviction is quashed and the sentence imposed upon him set aside. If the appellant paid the fine, the same should be refunded to him. If he is serving the default sentence, I order that, he be released from prison forthwith unless otherwise lawfully held.

DATED AND DELIVERED AT ELDORET THIS

3RD DAY OF NOVEMBER, 2011.

F. AZANGALALA

JUDGE

Read in the Presence of:

(1)Mr. Kiboi holding brief for Mr. Buluma for the appellant and

(2)Mr. Chirchir for the State

F. AZANGALALA

JUDGE

3/11/2011