[2021] KEHC 5968 (KLR)
The court found that imposing the maximum sentence of three years imprisonment for unlawful presence in Kenya was harsh and excessive in the circumstances, particularly given the appellant's guilty plea, the mitigating factors presented, and the State's concession. The court exercised its discretion to reduce the...
Source-derived case information.
- Citation
- [2021] KEHC 5968 (KLR)
- Parties
- Appellant: Mohamed Hassan Ibrahim; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 12 of 2020
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced; appellant released and to be repatriated
- Judges
- A Ali-Aroni
- Legal Topics
- Immigration Offences, Sentencing Principles, Unlawful Presence, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Hassan Ibrahim
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant for unlawful presence in Kenya was excessive in the circumstances.
- 2 Whether the maximum sentence was justified given the appellant's plea and circumstances.
Ratio Decidendi
The court found that imposing the maximum sentence of three years imprisonment for unlawful presence in Kenya was harsh and excessive in the circumstances, particularly given the appellant's guilty plea, the mitigating factors presented, and the State's concession. The court exercised its discretion to reduce the sentence to the period already served (16 months), holding that this was sufficient punishment and in line with the principles of proportionality and fairness in sentencing. The court further ordered the appellant's release unless otherwise lawfully held and directed his repatriation to Ethiopia.
Court Disposition
sentence reduced; appellant released and to be repatriated
Orders
- The sentence of three years imprisonment is set aside and substituted with a sentence of 16 months imprisonment, deemed served.
- The appellant is to be released unless otherwise lawfully held.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARISSA
CRIMINAL APPEAL NO. 12 OF 2020
MOHAMED HASSAN IBRAHIM...................APPELLANT
VERSUS
REPUBLIC...................................................RESPONDENT
JUDGEMENT
1. This appeal arises from the Judgement of Principal Magistrate P. N. Areri in Mandera Criminal Case No. 560 of 2019 where the Appellant had been charged with the offence of being unlawfully present in Kenya contrary to section 53(1) (2) as read with section 53 (2) of the Kenyan Citizenship and Immigration Act No. 12 of 2011.
The particulars of the offence are that on the 9th day of December, 2019 at Mandera Law Courts within Mandera East Sub-County in Mandera County, being an Ethiopia National, the Appellant was found unlawfully present in Kenya without a valid passport or permit authorizing him to stay in Kenya.
2. The Appellant pleaded guilty to the charge and the particulars of the offence and was fined Ksh.300,000/- or three years jail term in default and repatriation thereafter.
3. The main ground of appeal is on sentence which the Appellant submits is excessive in the circumstances of the case.
4. At the hearing of the appeal the Appellant explained that he was in Kenya seeking for greener pasture as Ethiopia neighbours Kenya and he used to work at the border town. He has a wife and 6 children back home.
5. The State on its part submitted that although the fine is within the law, it was however excessive in the circumstances of the case as three years is the maximum sentence for the offence.
6. Having considered the submissions by the Appellant and the State, the concession by the State on the maximum sentence and plea by the Appellant, I do agree that the maximum sentence meted out was harsh in the circumstances of the case.
7. The Appellant having served 16 months of the three years I will set aside the sentence of three-year, sentence him to 16 months and
deem the sentence to have been duly served. Consequently, the Appellant is set free unless he is otherwise lawful held.
8. The Appellant will be escorted and repatriated to Ethiopia upon his release.
DELIVERED AND SIGNED AT GARISSA THIS 27th DAY OF MAY 2021.
……………….………………
ALI-ARONI
JUDGE