[2019] KEHC 1081 (KLR)
The High Court held that while the trial court was correct in imposing a fine of KShs 20 million as required by section 92 of the Wildlife Conservation and Management Act, 2013, it erred in imposing a default sentence of 15 years imprisonment. The law under section 28(2) of the Penal Code prescribes that for fines...
Source-derived case information.
- Citation
- [2019] KEHC 1081 (KLR)
- Parties
- Appellant: Longida Lonkinyang; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 76 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal partially allowed; default sentence varied.
- Judges
- DW Mbuteti
- Legal Topics
- Wildlife Offences, Sentencing Principles, Illegal Possession, Default Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Longida Lonkinyang
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in imposing a default sentence of 15 years imprisonment for non-payment of a fine under section 92 of the Wildlife Conservation and Management Act, 2013.
- 2 Whether the default sentence should have complied with section 28(2) of the Penal Code.
Ratio Decidendi
The High Court held that while the trial court was correct in imposing a fine of KShs 20 million as required by section 92 of the Wildlife Conservation and Management Act, 2013, it erred in imposing a default sentence of 15 years imprisonment. The law under section 28(2) of the Penal Code prescribes that for fines exceeding KShs 50,000, the maximum term of imprisonment in default is twelve months. The default sentence imposed by the trial court was therefore illegal and had to be set aside. The court substituted the default sentence with a term of twelve months imprisonment in default of payment of the fine, in accordance with the law.
Court Disposition
Appeal partially allowed; default sentence varied.
Orders
- The default sentence of fifteen years imprisonment is set aside and substituted with twelve months imprisonment in default of payment of the fine.
- The appellant having served the default sentence, shall be set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL APPEAL NO 76 OF 2017
LONGIDA LONKINYANG .............................................................APPELLANT
VERSUS
REPUBLIC......................................................................................RESPONDENT
(Appeal from original Sentence dated 27/01/2016 in Nanyuki CM Criminal Case No 863 of 2014– W J Gichimu, PM)
J U D G M E N T
1. The Appellant herein, LONGIDA LONKINYANG (who was accused 2 before the trial court) was charged with being in unlawful possession of wildlife trophy contrary to section 95 of the Wildlife Conservation and Management Act, 2013 (the Act). It was alleged that on 20/09/2014 in Mukogodo Division within Laikipia–North Sub-County of Laikipia County, jointly with his co-accused and others not before court, he was found in unlawful possession of 2 elephant tusks weighing 3 kg valued at KShs 1 million, the property of the Government of Kenya. After trial he was convicted of the greater offence under section 92 of the said Act. This was without amendment to the charge. He was on 27/01/2016 sentenced as follows -
“Accused 2 to pay a fine of KShs 20 million, in default to serve 15 years imprisonment.”
The Appellant has appealed only against the sentence, particularly the default term of imprisonment of 15 years imprisonment.
2. Section 92 of the act provides as follows:-
“92. Any person who commits an offence in respect of an endangered or threatened species or in respect of any trophy of that endangered or threatened species shall be liable upon conviction to a fine of not less than twenty million shillings or imprisonment for life or to both such fine and imprisonment.”
A trial court therefore has three options in sentencing a convicted accused under this section –
i) It may fine him not less than KShs 20 million; OR
ii) It may imprison him for life; OR
iii) It may both fine and imprison him.
3. The trial court in the present case chose the first option. It fined the Appellant KShs 20 million and imposed a term of imprisonment of 15 years in default of paying the fine. The court did not both fine and imprison the Appellant. It merely imposed a term of imprisonment of 15 years in the event that the Appellant did not pay the pay.
4. However, the trial court erred in disregarding the provisions of section 28(2) of the Penal Code regarding terms of imprisonment in default of payment of fines. For the fine of KShs 20 million, the term of imprisonment in default of payment should have been twelve (12) months. The term of fifteen (15) years imprisonment in default of payment of the fine was patently illegal. It cannot be allowed to stand.
5. In the event I will partially allow the Appellant’s appeal against the sentence by setting aside the default sentence of fifteen (15) years and substituting therefore a term of imprisonment of twelve (12) months in default of payment of the fine.
6. The Appellant has long served that default sentence of twelve (12) months imprisonment. He shall therefore be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 4TH DAY OF DECEMBER 2019
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 5TH DAY OF DECEMBER 2019