PETER GICHUKI WANGARE vs REPUBLIC [2003] KEHC 533 (KLR)
- Citation
- [2003] KEHC 533 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- RM Mutitu
- Case number
- ? 54 of 2003
- Language
- English
More details
- Court
- High Court
- Panel
- RM Mutitu
- Case number
- ? 54 of 2003
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The High Court found that the trial magistrate erred by imposing a custodial sentence without providing justification, especially since the appellant was a first offender and the law provided for an option of a fine. The court held that the sentence was unnecessarily harsh and not supported by the circumstances of the case. Accordingly, the sentence was reviewed to substitute the custodial sentence with a fine, with a default custodial term in case of non-payment, and the sentences were ordered to run concurrently.
Court disposition
sentence reviewed and substituted with a fine
Orders
- The appellant shall pay a fine of Ksh.30,000 on each count, in default to serve one year imprisonment on each count.
- Sentences to run concurrently.
02
Material facts
Parties
Peter Gichuki Wangare
AppellantRepublic
Respondent Counsel: Mr. OgetiiAmounts and remedies
- Fine Per Count: KES 30,000
03
Procedural history
Posture
Criminal Appeal / Judgment
04
Questions and positions
Legal issues
- 01
Whether the custodial sentence imposed on the appellant was excessive in light of the statutory provisions allowing for a fine.
- 02
Whether the trial magistrate erred in failing to provide reasons for preferring a custodial sentence over a fine.
Party arguments
- Applicant
- The appellant argued that the sentence of two years imprisonment without the option of a fine was excessive, especially as he was a first offender and the law provided for an option of a fine. He sought a review of the sentence to a non-custodial one.
- Respondent
- The state, through Mr. Ogetii, did not oppose the review of the sentence and supported the appellant's request for a non-custodial sentence.
05
Court’s reasoning
Legal principles
- 01
Section 28 and Section 32(c) of the Kenya Communications Act 1998
Where the law provides for an option of a fine or imprisonment, the court should consider the circumstances of the offender, including whether they are a first offender, before imposing a custodial sentence.
- 02
General sentencing principles; see also the record of the trial court
Sentencing discretion must be exercised judiciously and reasons must be provided for preferring a custodial sentence over a fine where the law allows both.
06
Ratio, limits and disposition
Ratio decidendi
The High Court found that the trial magistrate erred by imposing a custodial sentence without providing justification, especially since the appellant was a first offender and the law provided for an option of a fine. The court held that the sentence was unnecessarily harsh and not supported by the circumstances of the case. Accordingly, the sentence was reviewed to substitute the custodial sentence with a fine, with a default custodial term in case of non-payment, and the sentences were ordered to run concurrently.
Obiter and limits
- The trial magistrate should have considered the appellant's status as a first offender when determining the appropriate sentence.
- Sentencing should not be unnecessarily harsh where the law provides for alternatives, and reasons must be given for the choice made.
Court disposition
sentence reviewed and substituted with a fine
- The appellant shall pay a fine of Ksh.30,000 on each count, in default to serve one year imprisonment on each count.
- Sentences to run concurrently.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION CRIMINAL APPEAL NO.54 OF 2003
(From original Conviction and Sentence in Criminal Case No.98 of 2003 of Senior Principal Magistrate Court at Nairobi)
PETER GICHUKI WANGARE…………………………. APPELLANT
VERSUS REPUBLIC……………………………………………… RESPONDENT
JUDGEMENT
The appellant filed an appeal challenging his sentence only for the offence of obtaining services dishonestly contrary to S.28 of the Kenya Communications Act 1998, the appellant who was the 1st accused in the original trial was sentenced to serve two years imprisonment without the option of a fine by El-Kindiy the principal Magistrate Nairobi. He has appealed against that sentence saying that it was too excessive. On count one which was pertaining the telecommunications plant contrary to section 32 (c) of the Kenya Communications Act 1998 the appellant was sentenced to a similar sentence. Mr. Ogetii for the state did not oppose the review of the sentence so as to give the appellant a non custodial sentence.
I have perused S.32 © of the Telecommunication Act. It provides for a fine of 10,000/= or to three years imprisonment both such fine and such imprisonment. S.28 of the same Act provides for a similar to penalty.
From my perusal of the record the appellant was a first offender. The trial magistrate has not indicated from his record why he preferred a custodial sentence yet the law provides for an option of a fine.
In my own considered view I would agree with both the appellant and the learned state counsel that trial magistrate was unnecessarily harsh on the appellant without any justification. I therefore review the sentence imposed on the appellant. Instead of serving two years imprisonment on each count the appellant will pay a fine of Ksh.30,000/= in default one year imprisonment on each count. Sentences will run concurrently.
Order accordingly.
R.M. MUTITU
JUDGE
21/2/2003
Delivered, dated and signed in open court in the presence of
Mr. Ogetii for the state and in the presence of the appellant.
R.M. MUTITU
JUDGE
21/2/2003
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