[2023] KEHC 1546 (KLR)
The court found that the sentence imposed by the trial magistrate was within the law, as the offence of possession of wildlife trophy attracts a fine of not less than 3 million shillings or a term of not less than 5 years imprisonment. The applicant, a Tanzanian national with no fixed abode in Kenya, could not...
Source-derived case information.
- Citation
- [2023] KEHC 1546 (KLR)
- Parties
- Applicant: Kisaka Naomi Michael; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E432 of 2022
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- Applicant to be released forthwith unless lawfully held for any other reason.
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Revision, Wildlife Offences, Possession of Wildlife Trophy, Non Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kisaka Naomi Michael
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed on the applicant for possession of wildlife trophy was legal and proper.
- 2 Whether the applicant qualifies for a non-custodial sentence under the Sentencing Policy Guidelines.
- 3 Whether the applicant should be released to decongest the women’s prison.
Ratio Decidendi
The court found that the sentence imposed by the trial magistrate was within the law, as the offence of possession of wildlife trophy attracts a fine of not less than 3 million shillings or a term of not less than 5 years imprisonment. The applicant, a Tanzanian national with no fixed abode in Kenya, could not benefit from probation or community service orders due to jurisdictional limitations. However, considering the objective of decongesting the women’s prison and the context of the application, the court exercised its discretion to order the applicant's immediate release unless lawfully held for another reason, despite the legality of the original sentence.
Court Disposition
Applicant to be released forthwith unless lawfully held for any other reason.
Orders
- The applicant is to be released forthwith unless lawfully held for any other reason.
Full Case Text
Judgment text and source record
23 paragraphs
Michael v Republic (Criminal Revision E432 of 2022) [2023] KEHC 1546 (KLR) (Crim) (27 February 2023) (Ruling)
Neutral citation: [2023] KEHC 1546 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Revision E432 of 2022
DR Kavedza, J
February 27, 2023
Between
Kisaka Naomi Michael
Appellant
and
Republic
Respondent
Ruling
1. The applicant seeks revision of her sentence of 1-year imprisonment term for being in possession of wildlife trophy contrary to section 92(4) of Wildlife Conservation and Management Act, 2013.
2. The Community Service Officer F Masila filed a sentence review report in court for consideration. The report shows that the Applicant is aged 26 years. She is currently serving her sentence at Lang’ata Women’s Prison.
Analysis of Law 3. The powers of the High court in revision are contained in section 362 through to 366 of the Criminal Procedure Code (cap 75). Section 362 specifically provides as follows: -“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court”
4. The sentence provided for the offence of being in possession of wildlife trophy contrary to section 92(4) of the Wildlife Conservation and Management Act is fine of not less than 3 million shillings or a term of not less than 5 years imprisonment. The sentence of a fine of Kenya Shillings Three million (Kshs 3Million) and in default 1-year imprisonment was within the law. It has not been demonstrated that the trial magistrate committed any illegality, impropriety or mistake in sentencing the applicant.
5. I am nonetheless alive to the Sentencing Policy Guidelines page 21 which provides: -“Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for a case in which the objectives of sentencing cannot be met through a non-custodial sentence. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence which is geared towards steering the offender from crime. In particular, imprisonment of petty offenders should be avoided as the rehabilitative objective of sentencing is rarely met when offenders serve short sentences in custody. Further, short sentences are disruptive and contribute to re-offending.”
6. Being that the applicant has no fixed abode in Kenya and that she is a Tanzanian National who was travelling back home before the arrest, I find that effecting the probation or community service order would prove difficult since the office’s jurisdiction does not extend to other countries.
7. However, since this file has been called for with a view to decongest the women’s prison, I direct that the applicant be released forthwith unless she is lawfully held for any other reason.
RULING READ, DELIVERED AND SIGNED THIS 27TH DAY OF FEBRUARY 2023. ..........................................D. KAVEDZAJUDGEIn the presence of: