[2019] KEHC 2774 (KLR)
The High Court found that while the offence of possession of government trophies is serious and threatens wildlife tourism, the trial court failed to consider the period the appellants had already spent in custody. The court acknowledged the mitigating factors presented by the appellants, including being first...
Source-derived case information.
- Citation
- [2019] KEHC 2774 (KLR)
- Parties
- Appellant: Metian Ole Rakatian; Appellant: Moge Ole Malit; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 4A & 4B of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced
- Legal Topics
- Wildlife Offences, Sentencing Principles, Possession of Government Trophies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Metian Ole Rakatian
Appellant
Moge Ole Malit
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was manifestly harsh and excessive.
- 2 Whether the trial court failed to consider the period spent in custody by the appellants.
- 3 Whether the minimum mandatory sentence under the Wildlife Conservation and Management Act applies.
Ratio Decidendi
The High Court found that while the offence of possession of government trophies is serious and threatens wildlife tourism, the trial court failed to consider the period the appellants had already spent in custody. The court acknowledged the mitigating factors presented by the appellants, including being first offenders, showing remorse, and having dependents. Applying the binding precedent on minimum mandatory sentences and considering the time spent in custody, the court reduced the sentence for both appellants to a fine of Kshs. 220,000 in default to serve fifteen months' imprisonment.
Court Disposition
sentence reduced
Orders
- The sentence for each appellant is reduced to a fine of Kshs. 220,000 in default to serve fifteen months' imprisonment.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAROK
CRIMINAL APPEAL NO. 4A AND 4B OF 2018
METIAN OLE RAKATIAN........1ST APPELLANT
MOGE OLE MALIT....................2ND APPELLANT
VERSUS
REPUBLIC
(Being an appeal from the judgement, conviction and sentence of Hon. H. Ng’ang’a, SRM, delivered on 9th February 2013 in the Chief Magistrate’s Court at Narok in Criminal Case No. 73 of 2106, R v. 1. Moge Ole Malit 2. Metian Ole Rakatia)
JUDGEMENT
1. The appellants have appealed against their sentence of Kshs. 1,000, 000/= in default to serve five years’ imprisonment in respect of the offence of possession of Government trophies namely two pieces of elephant tusks contrary to section 95 as read with section 92 and section 105 (1) (a) of the Wildlife Conservation and Management Act of 2013.
Appeal of the 1st appellant-Metian Ole Rakatian
2. In his amended grounds of appeal, the 1st appellant has faulted the trial court for imposing a manifestly harsh sentence. Grounds 2, 4 and 5 are mitigating factors and I will consider them together. His mitigation was as follows. He was a first offender, repentant, remorseful, a family man with three school going children, epileptic, and has an old sickly mother; all of whom depend upon him.
3. In ground 3 the appellant has faulted the trial court for failing to consider that he had been in custody.
4. In sentencing the appellant, the court took into account his mitigation that he was an orphan and was feeling sick. The court also took into account that he was remorseful and was a first offender. The court then sentenced him to the minimum mandatory sentence of a fine of Kshs 1000,000/= in default to serve five years’ imprisonment.
5. In view of the decision in Francis Karioko Muruatetu & Another v R [2017] eklr this court is bound to impose a minimum mandatory sentence. I have also taken into account that the appellant has been in custody since 28th November 2016, which translates to about three years, which was not considered by the trial court.
6. I find that the offence is a threat to wildlife tourism in this country and is very serious.
7. After considering all these matters, I hereby reduce the sentence to a fine of Kshs. 220,000/= in default to serve fifteen months (15) months imprisonment.
Appeal of 2nd appellant-Moge Ole Malit
8. This appellant has raised the same grounds of appeal like the 1st appellant; except that he is not an orphan.
9. I hereby reduce the sentence to a fine of Kshs. 220,000/= in default to serve fifteen months (15) months imprisonment.
Judgement signed, dated and delivered in open court at Narok this 6th day of November, 2019 in the presence of both the appellants and Mr. Omwega for the state.
J. M. Bwonwong’a
Judge
6/11/2019