[2011] KEHC 1932 (KLR)
The court found that the fine imposed on count 2 exceeded the statutory maximum and was therefore illegal. The court also considered the exceptional mitigating circumstances, namely the declaration of drought as a national disaster and the applicants' actions being compelled by necessity to preserve their livestock....
Source-derived case information.
- Citation
- [2011] KEHC 1932 (KLR)
- Parties
- Applicant: Musa Harun & 5 Others; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Revision Case 194 of 2011
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- sentences revised; applicants released
- Judges
- CJ Kendagor
- Legal Topics
- Wildlife Offences, Illegal Grazing, Sentencing Principles, Environmental Protection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musa Harun & 5 Others
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the fines imposed on the applicants exceeded the statutory maximum for the relevant offences.
- 2 Whether the circumstances of drought and declaration of a national disaster should mitigate the sentences imposed on the applicants.
- 3 Whether the applicants' continued imprisonment was justified given the circumstances.
Ratio Decidendi
The court found that the fine imposed on count 2 exceeded the statutory maximum and was therefore illegal. The court also considered the exceptional mitigating circumstances, namely the declaration of drought as a national disaster and the applicants' actions being compelled by necessity to preserve their livestock. The court held that, while environmental protection is critical, the government also has a duty to safeguard the lives and property of its citizens, and that a balance must be struck in such situations. Having served two months in prison, the applicants had already suffered sufficient punishment. The court exercised its revisionary powers to set aside the fines and sentences,...
Court Disposition
sentences revised; applicants released
Orders
- The fines of KES 8,000 in default 3 months imprisonment in each sentence are set aside and substituted with imprisonment for the period already served.
- The applicants are to be set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
REVISION NO. 194 OF 2011
MUSA HARUN & 5 OTHERS………......................………………..………………APPLICANTS
VERSUS
REPUBLIC………………….............………………………………………..………RESPONDENT
RULING IN REVISION
The matter was brought to the attention of the court by Messrs Mbogo & Muriuki advocate. The court invited submission by the above firm of advocates and the state.
The applicants were facing four counts as follows;
1. Count I for accused 1, 2, 3 & 4, on 30th day of May 2011 at No.98 area of Meru National Park in Meru Country were found destroying indigenous plants by grazing 900 goats and 400 cows within the said National Park without a written authority from the Director of Kenya Wild Life Services,
2. Count II for Accused 1, 2, 3 & 4, knowingly introducing domestic animals into a national park contrary to section 13(3) (f) as read with Section 56 of Wildlife conservation Management Act Cap 376 Laws of Kenya,
3. Count III for accused 1, 2, 3 & 4, deliberate disturbance of Wild Animals in the park contrary to section 13 (3) of Wildlife Conservation & Management Act Cap. 376 laws of Kenya,
4. Count for Accused 1, 2, 3 & 4, destruction of Natural Resources in the protected area contrary to Section 143 of Environmental Management & Conservation Act.
Mr. Mbogo submitted that even though the sentences were written in the law, they were excessive since the accused mitigated that they were forced by circumstances of drought to enter the Forest and National Parks, with their animals to look for water and pasture. Counsel urged the court to consider they walked 360 kilometers. Counsel urged the court to note that the court had declared the drought a National Disaster.
The accused pleaded guilty to the charge and were fined kshs.8000/= in default 3 months imprisonment on each count. Except for count 2 where maximum fine provided is kshs.5000/=, the rest of the fines were within the maximum provided under the law. In count 2 the fine imposed was beyond the maximum given under the law and is therefore illegal.
I did take into consideration that the applicants 2, 3, 5 and 6 have been in prison serving the default sentence since 31st May, 2011.
I take Judicial Notice of the fact the Government has declared the current drought a National Disaster. The plight which befell the six accused is a Natural issue.
While it is a serious threat to the Environment and to the National Parks to allow grazing of domestic animals in our Parks, it is inexcusable indifference to disallow a limited encroachment, with authority from the relevant Management, to preserve Domestic animal population. A balance must be struck. The government has a great rule to play in this. It is the responsibility of the Government to preserve life and property of its citizens. Taking proactive actions, for instance, in drilling bore holes to provide water in our arid and semi-arid areas, before the draught becomes a national disaster, is one such measure which glaringly lacking.
The accused have served two months imprisonment. I think that they do not deserve to be in jail for what they did. It was beyond their control.
I will exercise powers of the court in revision under Section 362-364 of CPC and reverse/set aside the fines of 8000/= in default 3 months imprisonment in each sentence to imprisonment for the period already served.
I order that the appellants be set at liberty forthwith unless they are otherwise lawfully held. Those are my orders.
Dated, signed and delivered this 21st day of July, 2011.
LESIIT, J.
JUDGE