[2011] KEHC 1326 (KLR)
The High Court found that the trial magistrate imposed a sentence that was excessive given the appellants' guilty plea and first offender status. The law allowed for a fine or imprisonment or both, but the circumstances did not justify a custodial sentence. The court held that a non-custodial sentence would have...
Source-derived case information.
- Citation
- [2011] KEHC 1326 (KLR)
- Parties
- Appellant: Nickson Taki Chachu; Appellant: Fredrick Sitienei; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 227 & 228 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- RPV Wendoh
- Legal Topics
- Wildlife Offences, Sentencing Principles, Mitigation, Possession of Game Trophy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nickson Taki Chachu
Appellant
Fredrick Sitienei
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial magistrate was excessive in the circumstances.
- 2 Whether the trial court failed to consider the appellants' mitigation and status as first offenders.
- 3 Whether a non-custodial sentence was appropriate given the facts.
Ratio Decidendi
The High Court found that the trial magistrate imposed a sentence that was excessive given the appellants' guilty plea and first offender status. The law allowed for a fine or imprisonment or both, but the circumstances did not justify a custodial sentence. The court held that a non-custodial sentence would have sufficed, and thus quashed the one-month imprisonment, substituting it with a fine of Kshs.6,000 in default one month imprisonment. The court emphasized the importance of considering mitigation and the proportionality of the sentence to the offence and offender's circumstances.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of 1 month imprisonment is quashed.
- The appellants are sentenced to pay a fine of Kshs.6,000 each, in default 1 month imprisonment.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
NAKURU
CRIMINAL APPEAL NOS. 227 & 228 OF 2011
(From original conviction and sentence in Criminal Case No. 3448 of 2011 of the Chief Magistrate’s Court at Nakuru – W. Juma, CM).
NICKSON TAKI CHACHU.............................................................1ST APPELLANT
FREDRICK SITIENEI.....................................................................2ND APPELLANT
VERSUS
REPUBLIC…………………………..........................………...……..RESPONDENT
JUDGMENT
Nickson Taki Chachu and Fredrick Sitienei were arraigned before the Chief Magistrate’s Court Nakuru, on 23rd September 2011 charged with the offence of unlawfully being in possession of a game trophy contrary to Section 13(3)(e) of the Wildlife Act, No.16 of 1989, Cap 376 Laws of Kenya. It was alleged that they were jointly in possession of a leopard skin to wit 2 kilograms, worth Kshs.50,000/- without a dealers license.
They pleaded guilty to the offence and after mitigation, each was fined Kshs.6,000/- in default 3 months imprisonment and in addition to serve 1 month imprisonment. They were aggrieved by the sentence and through the firm of Olali Cheche Adovcate, Nickson filed Appeal Number 227 of 2011 while Fredrick Sitienei filed Appeal Number 228 of 2011. The grounds upon which the appeal is preferred are that the magistrate erred in ignoring the mitigation by the accused; that the sentence is harsh and excessive in the circumstances and should be set aside; that being first offenders, the magistrate should have preferred a non custodial sentence. The appeals were consolidated and heard together as Appeal No. 228 of 2011. Mr. Nyakundi submitted that since the appellants pleaded guilty, the sentence was excessive in the circumstances.
I have now considered the grounds of appeal and submissions of counsel. The appellants are only aggrieved by the sentence which they complain is excessive Under Section 13(3)of theWildlife Act, any person guilty to an offence under that Section is liable to a fine not exceeding Kshs.10,000/- or to imprisonment to a term not exceeding 1 year or both. I have taken into account the fact that the appellants pleaded guilty to the offence. They were treated as first offenders. In my view, non custodial sentence would have sufficed. For that reason, I find that the sentence was excessive in the circumstances. I quash the sentence of 1 month imprisonment. Instead the appellants are sentenced to pay a fine of Kshs.6,000/- in default 1 month imprisonment. It is so ordered.
DATED and DELIVERED this 7th day of October 2011.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Cheche for the appellants.
Mr. Nyakundi for State.
Kennedy – Court Clerk.