[2019] KEHC 1785 (KLR)
The court found that the appellants' guilty pleas were unequivocal and properly entered after the charges and facts were explained to them with the assistance of an interpreter. The conviction was therefore upheld. However, the court determined that the one-year custodial sentence imposed by the trial court was...
Source-derived case information.
- Citation
- [2019] KEHC 1785 (KLR)
- Parties
- Appellant: Maharu Dire; Appellant: Dakehe Kaboro; Appellant: Samwel Lampegu; Appellant: Mesfin Fikadu; Appellant: Deneka Forsido; Appellant: Masamo Lakha; Appellant: Emmanuel Abara; Appellant: Ashalaafi Kirma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Marsabit
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 16 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal on conviction dismissed; sentence set aside and substituted with period already served.
- Judges
- SJ Chitembwe
- Legal Topics
- Illegal Presence, Immigration Offences, Sentencing, Guilty Plea
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maharu Dire
Appellant
Dakehe Kaboro
Appellant
Samwel Lampegu
Appellant
Mesfin Fikadu
Appellant
Deneka Forsido
Appellant
Masamo Lakha
Appellant
Emmanuel Abara
Appellant
Ashalaafi Kirma
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of the appellants for being illegally present in Kenya was proper.
- 2 Whether the sentence of one year imprisonment without the option of a fine was excessive in the circumstances.
Ratio Decidendi
The court found that the appellants' guilty pleas were unequivocal and properly entered after the charges and facts were explained to them with the assistance of an interpreter. The conviction was therefore upheld. However, the court determined that the one-year custodial sentence imposed by the trial court was excessive given that the appellants were first offenders, had shown remorse, and had already served approximately two and a half months in custody. The court held that the period already served constituted sufficient punishment and set aside the original sentence, substituting it with the time served. The court further ordered the appellants' release and repatriation to Ethiopia...
Court Disposition
Appeal on conviction dismissed; sentence set aside and substituted with period already served.
Orders
- The one-year imprisonment sentence is set aside and replaced with the period already served.
- The appellants shall be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
CRIMINAL APPEAL CASE NO. 16 OF 2019
MAHARU DIRE......................................1ST APPELLANT
DAKEHE KABORO...............................2ND APPELLANT
SAMWEL LAMPEGU.............................3rd APPELLANT
MESFIN FIKADU.....................................4th APPELLANT
DENEKA FORSIDO.................................5th APPELLANT
MASAMO LAKHA...................................6th APPELLANT
EMMANUEL ABARA..............................7th APPELLANT
ASHALAAFI KIRMA..............................8th APPELLANT
VS.
REPUBLIC.................................................. RESPONDENT
JUDGEMENT
The appellants were charged with the offence of being illegally present in Kenya contrary to section 53 (1) as read with section 53 (2) of the Kenya Citizenship and Immigration Act, 2011. The particulars of the offence are that the appellants on the 22nd day of September 2019 at Segel area in Marsabit Central Sub-County within Marsabit County being Ethiopian citizens were found unlawfully present in Kenya without any valid permit.
The appellants pleaded guilty to both the charge and the facts and were sentenced to served one (1) year custodial sentence without option of a fine.
The appellants informed the court that they pleaded guilty to the offence. They are seeking the court’s leniency and pray that they be repatriated back to their country.
Mr. Kihara, Prosecution Counsel, submitted that the conviction is proper. Counsel conceded that the one (1) year imprisonment sentence is excessive. The appellants are being fed by the National Government and are of no useful assistance to the Nation.
The record of the trial court shows that the appellants were arraigned in court on 23/9/2019. The plea was differed to 24/9/2019 as there was no Amharic interpreter. The charge was read over and explained to the appellants who understood the contents and opted to plead guilty. I do find that the plea is unequivocal and the conviction is proper.
Mr. Kihara, prosecution counsel, informed the court that the appellants are first offenders and have shown remorse. The sentence is excessive. Since the appellants have been in custody from 22/09/2019 when they were arrested, I do find that the period served of about 2 ½ months is sufficient punishment. The one (1) year imprisonment sentence is hereby set aside and replaced with the period already served.
The upshot is that the appeal on conviction is disallowed. The sentence is set aside and replaced with the period already served. The appellants shall be set at liberty and repatriated back to Ethiopia unless otherwise lawfully held.
Dated and delivered at Marsabit this 3rd day of December 2019
HON. S. CHITEMBWE
JUDGE