[2002] KEHC 928 (KLR)
The court found that the first and second counts, both relating to the same forged passport, constituted a single offence under section 13(1)(d) of the Immigration Act. It was improper to sentence the appellant separately on both counts. The court combined the two counts into one and substituted the sentences with a...
Source-derived case information.
- Citation
- [2002] KEHC 928 (KLR)
- Parties
- Appellant: Manuel Victor Moreira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 391 of 2002
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Appeal allowed in part; sentences substituted; repatriation order upheld.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Immigration Offences, Sentencing Principles, Forgery of Passport
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Manuel Victor Moreira
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the appellant was properly sentenced on two counts relating to the same forged passport under section 13(1)(d) of the Immigration Act.
- 2 Whether the sentences imposed were appropriate in light of the law and circumstances.
Ratio Decidendi
The court found that the first and second counts, both relating to the same forged passport, constituted a single offence under section 13(1)(d) of the Immigration Act. It was improper to sentence the appellant separately on both counts. The court combined the two counts into one and substituted the sentences with a fine of Kshs. 20,000 (or six months imprisonment in default) for the combined count, and a further fine of Kshs. 20,000 (or six months imprisonment in default) for the remaining count. The order for repatriation was upheld, with the appellant to be handed over to immigration authorities upon payment of the fine or completion of the prison term.
Court Disposition
Appeal allowed in part; sentences substituted; repatriation order upheld.
Orders
- The sentences on the first and second counts are combined and substituted with a fine of Kshs. 20,000 or six months imprisonment in default.
- On the remaining count, a fine of Kshs. 20,000 or six months imprisonment in default is imposed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
APPELLATE SIDE
CRIMINAL APPEAL No 391 OF 2002
From Original Conviction(s) and Sentence(s) in Criminal Case No 375 of 2002 of the Chief Magistrate’s Court at Nairobi)
MANUEL VICTOR MOREIRA…………………………….APPELLANT
VERSUS
REPUBLIC…………………………………………………RESPONDENT
J U D G M E N T
The appellant is a Nigerian National. He pleaded guilty to three offences under the Immigration Act Cap. 172 Laws of Kenya. On each count the appellant was sentenced to serve 9 months imprisonment. Sentences were to run concurrently. He was also to be expatriated back to his country.
The appellant having pleaded guilty, this appeal is against sentence only. That notwithstanding, the first and second counts relate to the same subject matter which is he forged passport and covered by the provisions of Section 13(1) (d).
There should have been only one count not two and it is not enough to uphold that the appellant pleaded guilty to both counts. In my judgment therefore counts one and two constitute a single offence under section 13(1) (d).
The sentence provided for that offence is a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding three years or to both.
On the third count the sentence provided for is a fine not exceeding twenty thousand or to imprisonment for a term not exceeding one year or to both.
The appellant is not a first offender. The record says as much. But he is a foreigner and his continued stay here even in prison is more detrimental to law enforcement agencies.
I have combined the first and second counts to be one. Therefore only two counts remain to be addressed on sentence.
I am inclined allow the appeal which I hereby do by substituting the sentence imposed and in place thereof impose a fine of Kshs. 20,000 in default six months imprisonment on count one (first and second counts) combined and shs. 20,000/- in default six months imprisonment on count two(previously) count three.(Making a total of Kshs. 40,000.
The order for repatriation shall remain and it is ordered that, on payment of the fine or completion of the prison term the appellant shall be handled over to the immigration officers, for immediate repatriation to his country.
Orders accordingly.
Dated and delivered at Nairobi this 15th day of May, 2002.
MBOGHOLI MSAGHA
JUDGE