[2013] KEHC 2667 (KLR)
The court found that while the sentence of one year imprisonment was within the permissible range for a misdemeanor under Section 36 of the Penal Code, the trial magistrate erred by not affording the appellant, a first offender, the option of a fine. The law provides that in the absence of a specific penalty, a...
Source-derived case information.
- Citation
- [2013] KEHC 2667 (KLR)
- Parties
- Appellant: Mohamed Said Mwamayo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 21 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied; custodial sentence substituted with fine
- Judges
- GO Shikwe
- Legal Topics
- Possession of Public Stores, Sentencing Guidelines, Misdemeanor Punishment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Said Mwamayo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant for possession of public stores was lawful and appropriate.
- 2 Whether the appellant, as a first offender, should have been afforded the option of a fine under Section 36 of the Penal Code.
Ratio Decidendi
The court found that while the sentence of one year imprisonment was within the permissible range for a misdemeanor under Section 36 of the Penal Code, the trial magistrate erred by not affording the appellant, a first offender, the option of a fine. The law provides that in the absence of a specific penalty, a misdemeanor may be punished by imprisonment, a fine, or both. Given the appellant's status as a first offender and the nature of the offence, the appellate court deemed it reasonable and just to substitute the custodial sentence with a fine of Kshs. 80,000, with a default sentence of one year imprisonment if the fine is not paid.
Court Disposition
sentence varied; custodial sentence substituted with fine
Orders
- The appellant is fined Kshs. 80,000 in default one year imprisonment from the time of conviction.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
Criminal Appeal 21 of 2003 [if gte mso 9]><xml>
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(From Original Conviction and Sentence in Criminal Case No. 199 of 2013 of the Chief Magistrate’s Court at Mombasa – I. Ruguru (SRM))
MOHAMED SAID MWAMAYO…….………........…………. APPELLANT
- Versus -
REPUBLIC …………………………………………….… RESPONDENT
J U D G M E N T
The Appellant was convicted and sentenced to one year imprisonment for the offence of being in possession of public stores contrary to Section 324(2) as read with Section 36 of the Penal Code.
The particulars are that on the 22nd day of January 2013 at Majengo Mapya in Likoni – Mombasa County he had in his possession public stores namely – In-Patient Register MOH 301 of he Ministry of Health to which the item of stores belong such a property being reasonably suspected of having been stolen or unlawfully obtained.
This appeal is on sentence punishment under Section 324 of the Penal Code is not expressly provided. A reading of the Section provides that any person convicted under that Section is guilty of a misdemeanor.
Section 36 of the Penal Code provides for general punishment thus-
“When in this code no punishment is specially provided for any misdemeanor, it shall be punishable with imprisonment for a term not exceeding two years or with a fine or with both.”
The circumstances surrounding this case is that the Appellant was a suspected member of Mombasa Republic Council an outlawed outfit. His house was searched and a Register was recovered which was the property of Kenya Government. It had names of people, their designation duties and their phone numbers.
The Appellant pleaded guilty to the charges. After conviction he was treated as a first offender.
The trial Magistrate proceeded to sentence him to one year imprisonment without the option of a fine. Having been treated as a first offender it was only reasonable that he be afforded the option of a fine.
The sentence of one year imprisonment is fair in the circumstances of this case but the option of a fine is deemed necessary. The Appellant stands fined Kshs. 80,000/- in default one year imprisonment from the time of conviction.
Dated and delivered at Mombasa this 27th day of May, 2013.
M. MUYA
JUDGE
Dated and delivered in open court in the presence of:-
Mr. Ayodo for State
Miss Mutua holding brief for Okanga Counsel for the Accused
Court clerk – Mr. Musundi
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