Kenya Judgment

High Court · High Court at Nairobi (Milimani Law Courts)

PETER GICHUKI WANGARE vs REPUBLIC [2003] KEHC 533 (KLR)

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Professional case brief

Research organized from the available case record

Source document

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

Appellant

Republic

Respondent Counsel: Mr. Ogetii

Amounts and remedies

  • Fine Per Count: KES 30,000

03

Procedural history

  1. Posture

    Criminal Appeal / Judgment

04

Questions and positions

Legal issues

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

  1. 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.

  2. 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

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Judgment reading view

Judgment text

The complete available source text.

Source document

High Court

Judgment

[2003] KEHC 533 (KLR)

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

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Kenya Communications Act 1998, Section 28

Legislation

Legislation referenced in the available case record.

Kenya Communications Act 1998, Section 32(c)

Legislation

Legislation referenced in the available case record.

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