[2020] KEHC 747 (KLR)
The trial Magistrate imposed a sentence of Kshs.50,000 per count and a cumulative fine of Kshs.300,000 for the offence of trespass upon private land, contrary to the express provisions of the Trespass Act, which limits the fine to Kshs.500 or imprisonment for up to two months. The High Court found that this sentence...
Source-derived case information.
- Citation
- [2020] KEHC 747 (KLR)
- Parties
- Applicant: Muhamud Abdi Dabar; Applicant: Hussein Rashid Dhida; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garsen
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E002 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Sentence Revision
- Outcome
- revision allowed; sentence set aside and substituted
- Judges
- DB Nyakundi
- Legal Topics
- Sentencing Illegality, Trespass Offences, Revisionary Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muhamud Abdi Dabar
Applicant
Hussein Rashid Dhida
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Revision
Legal Issues
- 1 Whether the sentence imposed by the trial Magistrate for trespass upon private land was illegal and excessive.
- 2 Whether the High Court should exercise its revisionary jurisdiction to set aside and substitute the sentence.
Ratio Decidendi
The trial Magistrate imposed a sentence of Kshs.50,000 per count and a cumulative fine of Kshs.300,000 for the offence of trespass upon private land, contrary to the express provisions of the Trespass Act, which limits the fine to Kshs.500 or imprisonment for up to two months. The High Court found that this sentence was illegal, irregular, and unjust, lacking any legal basis. Exercising its revisionary jurisdiction, the High Court set aside the illegal sentence and substituted it with the statutory maximum fine of Kshs.500 in default two months imprisonment, thereby ensuring compliance with the law and correcting the injustice occasioned by the lower court's sentence.
Court Disposition
revision allowed; sentence set aside and substituted
Orders
- The sentence of Kshs.50,000 per count and cumulative Kshs.300,000 is set aside as illegal.
- The sentence is substituted with a fine of Kshs.500 in default two months imprisonment for each count.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARSEN
CRIMINAL REVISION NO. E002 OF 2020
MUHAMUD ABDI DABAR
HUSSEIN RASHID DHIDA....APPLICANT
-VERSUS-
REPUBLIC..........................RESPONDENT
Coram: Justice Reuben Nyakundi
Applicant in person
Mr. Mwangi for the State
RULING
This revision on sentence has been filed by the state following a conviction and sentence of the convicts for the offence of trespass upon private land contrary to Section 3 (1) as read with Section (11) of the Trespass Act Cap 294 of the Laws of Kenya.
In the applicant memorandum to this Court, the Learned trial Magistrate erred in Law when he passed a sentence of a fine of Kshs.50,000/= on Count 2, 3, 5, 6, 7, and 8 in default to serve (2) two months imprisonment.
Further, the Learned trial Magistrate made the following order:
“For avoidance of doubt the accused’s were by sentenced to pay a fine of Kshs.300,000/=.”
Determination
It is not in dispute that the convicts were charged, tried and convicted for the offence of trespass upon private land contrary to Section 3 (1) as read with (11) of the Trespass Act. In case of a conviction, the statute provides for a sentence of Kshs.500/- or to imprisonment for a term not exceeding two months or to both such fine and imprisonment.
Given the above provisions and on what later transpired at the trial Court, I am in agreement with the prosecution counsel that the Learned trial Magistrate failed to appreciate the letter of the process on sentence for the offence of trespass upon private property. The sentence of fine of Kshs.50,000/= or the quantified 300,000/= by itself was illegal, irregular incorrect and unjust with no legal basis.
To that extent, I am viable to find any justification which motivated the Learned trial Magistrate to impose an illegal sentence outside the stipulated fine and period of imprisonment.
In exercise of supervisory and revisionary jurisdiction premised in Article 165 (6) and (7) of the Constitution as read with Section 362 of the Criminal Procedure Code. I am subjected that the illegality and impropriety of the sentence cannot be permitted to stand as it prejudiced and occasioned an injustice to the convicts. From the record its difficult to appreciate the position of the Learned trial Magistrate on this point.
Furthermore, the grounds in each memorandum raised by the applicant are not curable within the terms of Section 382 of the Criminal Procedure Code, so the Learned Magistrate in my respectful view, the sentence imposed occasioned an injustice. Exercising the powers of the Court under the revisionary jurisdiction, I purpose to set aside the sentence of Kshs.50,000/= for the respective counts and cumulative quantum of Kshs.300,000/= for being illegal and wrong in Law. The same is substituted with a fine of Kshs.500 in default 2 months imprisonment.
To this extent, the revision is allowed.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 15TH DAY OF DECEMBER, 2020
............................
R. NYAKUNDI
JUDGE
In the presence of:
1. Mr. Mwangi for the state