[2003] KEHC 533 (KLR)
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...
Source-derived case information.
- Citation
- [2003] KEHC 533 (KLR)
- Parties
- Appellant: Peter Gichuki Wangare; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 54 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reviewed and substituted with a fine
- Judges
- RM Mutitu
- Legal Topics
- Sentencing Review, Obtaining Services Dishonestly, Telecommunications Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Gichuki Wangare
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the custodial sentence imposed on the appellant was excessive in light of the statutory provisions allowing for a fine.
- 2 Whether the trial magistrate erred in failing to provide reasons for preferring a custodial sentence over a fine.
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.
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.
Full Case Text
Judgment text and source record
18 paragraphs
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