[2013] KEHC 5759 (KLR)
The court found that the sentence of twelve months imprisonment without the option of a fine was harsh given the statutory provision allowing for a fine or imprisonment or both. The trial magistrate failed to consider the option of a fine, which is expressly provided for under the Kenya Citizenship and Immigration...
Source-derived case information.
- Citation
- [2013] KEHC 5759 (KLR)
- Parties
- Applicant: Khadija Ahmed; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 65 of 2013
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- sentence revised
- Judges
- GO Shikwe
- Legal Topics
- Immigration Offences, Sentencing Principles, Revision of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Khadija Ahmed
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the sentence imposed on the applicant for being unlawfully present in Kenya was harsh and excessive.
- 2 Whether the applicant was entitled to an option of a fine under the Kenya Citizenship and Immigration Act.
Ratio Decidendi
The court found that the sentence of twelve months imprisonment without the option of a fine was harsh given the statutory provision allowing for a fine or imprisonment or both. The trial magistrate failed to consider the option of a fine, which is expressly provided for under the Kenya Citizenship and Immigration Act. The High Court exercised its revisionary jurisdiction to substitute the custodial sentence with a fine of Ksh. 80,000, with a default sentence of twelve months imprisonment, thereby aligning the sentence with the law and the circumstances of the case.
Court Disposition
sentence revised
Orders
- The sentence of twelve months imprisonment without the option of a fine is set aside.
- The applicant is sentenced to a fine of Ksh. 80,000 in default twelve months imprisonment.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
REVISION NO.65 OF 2013
KHADIJA AHMED ….....................................................APPLICANT
VERSUS
REPUBLIC …............................................................RESPONDENT
RULING
The Accused KHADIJA AHMED was charged with being unlawfully present in Kenya contrary to section 53(i) (j) of the Kenya Citizenship and Immigration Act.
She pleaded guilty to the charge and was Convicted after the facts were read to her with the aid of a Somali Interpreter. During her address to the Court in mitigation she did state that she was married to one Abdi Karim Abdi who was a Kenyan and they had children .
The trial magistrate did make orders that the investigating officer do make investigations on those allegations. A report was made by the District children officer that the Accused had no children living in Kenya but in Somalia. The Accused later admitted to have lied to Court and she was then Sentenced to twelve (12) months imprisonment without the option of a fine.
This offence attracts a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years or both. Do find that the Sentence of twelve (12) months imprisonment without an option of fine to have been harsh.
Pursuant to section 362 of the Criminal Procedure Code I accordingly revise the Sentence to that of a fine of Ksh. 80,000/= in default twelve (12) months imprisonment.
Ruling dated and delivered this 3rd day of July, 2013.
In the presence of:-
Amina for the applicant.
Mr. Jami for the State
…................
M. MUYA
JUDGE
3RD JULY, 2013