[2017] KEHC 766 (KLR)
The court held that the Prohibition of Female Genital Mutilation Act expressly provides for a minimum sentence of three years imprisonment or a fine of not less than two hundred thousand shillings, or both, for offences under the Act. By imposing a sentence of probation, the trial magistrate acted outside the...
Source-derived case information.
- Citation
- [2017] KEHC 766 (KLR)
- Parties
- Applicant: Republic; Respondent: Daisy Cherotich
- Court
- High Court
- Court Station
- High Court at Bomet
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 8 of 2016
- Procedural Posture
- Criminal Revision / Ruling on Sentence Revision
- Outcome
- Sentence revised; probation order set aside and substituted with statutory minimum fine.
- Judges
- GO Shikwe
- Legal Topics
- Sentencing Guidelines, Minimum Sentences, Female Genital Mutilation, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Daisy Cherotich
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Revision
Legal Issues
- 1 Whether the trial court had discretion to place the respondent on probation despite the statutory minimum sentence for the offence under the Prohibition of Female Genital Mutilation Act.
- 2 Whether the sentence imposed by the trial court was lawful.
Ratio Decidendi
The court held that the Prohibition of Female Genital Mutilation Act expressly provides for a minimum sentence of three years imprisonment or a fine of not less than two hundred thousand shillings, or both, for offences under the Act. By imposing a sentence of probation, the trial magistrate acted outside the statutory limits and exercised discretion that had been expressly removed by Parliament. The High Court, exercising its revisionary jurisdiction under Section 362 of the Criminal Procedure Code, found the probation order illegal and substituted it with the statutory minimum fine of Kshs. 200,000, with a default sentence of one year imprisonment. The court emphasized that statutory...
Court Disposition
Sentence revised; probation order set aside and substituted with statutory minimum fine.
Orders
- The sentence of probation for two years is set aside.
- The respondent is sentenced to pay a fine of Kshs. 200,000 or in default serve one year imprisonment.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BOMET
CRIMINAL REVISION NO. 8 OF 2016
REPUBLIC............................APPLICANT/PROSECUTOR
-VERSUS-
DAISY CHEROTICH..................................RESPONDENT
RULING
The Respondent Daisy Cherotich was charged with the offence of failing to report commission of an offence C/S 24 as read with S. 29 of the Prohibition of Female Genital Mutilation Act No. 32 of 2011.
She pleaded guilty to the charge which was read to her in Kipsigis language. The facts were read to her and she admitted them to be correct. She was convicted on her own plea and before sentencing the court called for a probation report. Subsequently the accused was placed on probation for 2 years.
S. 29 of the prohibition of female Genital Mutilation Act provides: -A person who commits an offence under this act is liable on conviction to imprisonment for a term of not less than three years, or to a fine of not less than two hundred thousand shillings or both”.
From the above it’s apparent that parliament intended to divest the court the discretion of sentencing by providing for minimum sentences . The learned trial magistrate had no discretion to place the accused on probation. The probation placement was illegal.
S.362 of the CPC gives the high court powers of revision. In exercise of these powers I hereby alter and revise the sentence of probation placement for two years and substitute it with one of a fine of Kshs.200,000/= in default one years imprisonment
M. MUYA
JUDGE
15/3/17
Ruling delivered dated and signed this 15/3/2017 in the presence of learned counsel for prosecution Mr. Waweru Respondent present in person, Court assistants- Mercy/Rotich.
M. MUYA
JUDGE
15/3/17