[2023] KEHC 25822 (KLR)

Mwanzaje v Republic (Criminal Revision E076 of 2023) [2023] KEHC 25822 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25822 (KLR)

Republic of Kenya

In the High Court at Garsen

Criminal Revision E076 of 2023

M Thande, J

November 16, 2023

Between

Mwajego Ngomango Mwanzaje

Applicant

and

Republic

Respondent

Ruling

1. By an application filed on 1. 9.23, the Applicant seeks that the period of 5 months spent in remand custody be considered as part of his 5 year sentence that was imposed upon him in Mariakani Criminal Case No 500 of 2022. The Applicant states that he was arrested on 6. 6.18 and was granted bond on 28. 6.18 and later rearrested on 5. 10. 21. He was convicted on 15. 2.22 and sentenced to 5 years imprisonment. He urged that this Court takes into account the period of 5 months he spent in custody during trial, and reduce his sentence by the same period. He contends that the trial Magistrate did not take into consideration the said period as set out in para 7:11 of the sentencing guidelines.

2. The Respondent did not file any response and urged the Court to make a decision after looking at the lower court file.

3. The lower court record shows that the Applicant was charged with the offence of being in possession of wildlife trophy contrary to Section 95 of the Wildlife Conservation Act, 2013. The particulars of the offence are that on 22. 6.18 at Samburu area in Kinango sub-county within Kwale county, the Applicant and his 2 co-accused were found in possession of wildlife trophy, namely pangolin scales weighing 2. 75 kgs and valued at Kshs 4 million, without a permit. After the trial, the Applicant and his co-accused were convicted and the minimum sentence of a fine of Kshs 1,000,000/=, in default 5 years imprisonment was imposed.

4. Section 95 of the Wildlife Conservation and Management Act makes provision for offences relating to trophies and trophy dealing as follows:Any person who, without a permit or exemption granted under this Act in relation to a species not specified under section 92—a.kills or injures, tortures or molests, or attempts to kill or injure, any wildlife species;b.deals in a wildlife trophy;c.deals in a live wildlife species;d.is in possession of a wildlife trophy or live wildlife species; ore.manufactures an item from a wildlife trophy, commits an offence and shall be liable on conviction to a fine of not less than one million shillings or a term of imprisonment of not less than twelve months or to both such fine and imprisonment.

5. A person convicted of the offence listed in Section 95, which includes the offence of being in possession of a wildlife trophy as the Applicant was, is liable to a fine of not less than Kshs 1 million or a term of imprisonment of not less than 12 months or to both such fine and imprisonment. The learned Magistrate considered that the Applicant and his co-accused were first offenders and sentenced them to the minimum mandatory sentence prescribed by law.

6. The proviso to Section 333(2) of the Criminal Procedure Code obligates the court to take into account the period an accused spent in custody pending trial. It provides as follows:Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

7. Sentencing is a function of judicial discretion. This has led to disparity in sentencing for the same offence. The Judiciary published its Sentencing Policy Guidelines in 2016, the objectives of which are inter alia to address the disparities by structuring the exercise of judicial discretion. Notably, the Guidelines restate the requirement in the proviso to Section 333(2) of the Criminal Procedure Code. Para 7. 11 provides as follows:In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.

8. The offence committed by the Applicant attracts the minimum fine of Kshs 1 million and minimum sentence of imprisonment of 1 year. There is no evidence that the trial Magistrate did or did not consider the period the Applicant spent in custody. The trial Magistrate could have imposed a stiffer sentence, but in his discretion, opted for the minimum mandatory fine and in default a sentence of 5 years imprisonment.

9. It is now well settled that appellate courts must exercise restraint in interfering with judicial discretion. In the case of Mbogo v Shah [1968] EA 93 where the Court of Appeal considered an invitation to interfere with the exercise of judicial discretion and stated:[A] Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”

10. Duly guided by the holding by the Court of Appeal, I find that in the matter before me, there is nothing to show that the trial court in exercising its discretion, misdirected itself in some matter thereby arriving at a wrong decision. Further, looking at the case as a whole, it is not manifest that the trial court was clearly wrong in exercising its discretion by imposing the sentence that it did and thereby occasioning a miscarriage of justice. In light of this, I find no basis to warrant interference with the sentence imposed by the trial court in the exercise of its discretion.

11. As I conclude, I wish to state that for the avoidance of doubt, trial courts are urged to, upon conviction and in sentencing accused persons, state that the period spent in custody pending trial, has been taken into account.

12. In the end, I find that the Application filed on 1. 9.23 lacks merit and the same is hereby dismissed.

DATED AND DELIVERED IN MALINDI THIS 16TH DAY OF NOVEMBER 2023. .....................M. THANDEJUDGEIn the presence of: -…………………………………………………………… for the Applicant…………………………………………………………… for the Respondent……………………………………………………..…….. Court Assistant