[2017] KEHC 794 (KLR)
The trial magistrate erred by imposing a sentence of probation for two years, contrary to Section 29 of the Prohibition of Female Genital Mutilation Act, which mandates a minimum sentence of three years imprisonment or a fine of not less than two hundred thousand shillings or both. Parliament intended to remove...
Source-derived case information.
- Citation
- [2017] KEHC 794 (KLR)
- Parties
- Applicant: Republic; Respondent: Mercy Chelangat
- Court
- High Court
- Court Station
- High Court at Bomet
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 7 of 2016
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- sentence revised and substituted
- Judges
- GO Shikwe
- Legal Topics
- Sentencing Principles, Minimum Sentences, Female Genital Mutilation, Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Mercy Chelangat
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence of probation imposed by the trial court was illegal under the Prohibition of Female Genital Mutilation Act.
- 2 Whether the High Court should revise the sentence to comply with the statutory minimum sentence.
Ratio Decidendi
The trial magistrate erred by imposing a sentence of probation for two years, contrary to Section 29 of the Prohibition of Female Genital Mutilation Act, which mandates a minimum sentence of three years imprisonment or a fine of not less than two hundred thousand shillings or both. Parliament intended to remove judicial discretion in sentencing for offences under this Act by prescribing minimum sentences. The High Court, exercising its revisionary jurisdiction under Section 362 of the Criminal Procedure Code, found the sentence illegal and substituted it with the statutory minimum fine. The respondent is now sentenced to pay a fine of Kshs. 200,000, in default to serve one year imprisonment.
Court Disposition
sentence revised and substituted
Orders
- The sentence of probation for two years is set aside.
- The respondent is sentenced to pay a fine of Kshs. 200,000.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BOMET
CRIMINAL REVISION NO. 7 OF 2016
REPUBLIC.......................APPLICANT/PROSECUTOR
-VERSUS-
MERCY CHELANGAT...........................RESPONDENT
RULING
This is an application for revision grounded on the illegality of the sentence meted out on the Respondent.
She 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.
The charge was read to her in Kipsigis language. She pleaded guilty and the facts were read to her and she admitted them to be true and further stated that she was under peer pressure to get aroused. The court called for a probation report and later placed her 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”.
It’s apparent from the above that parliament in its wisdom decided to remove the courts discretion in sentencing by imposing minimum sentences in this act.
The learned trial magistrate had no option but to follow the provisions of S. 29 of the Act.
S. 362 of the Criminal Procedure Code provides:- The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding sentence or sides recorded or passed, and as to the regularity of any proceedings of any such subordinate court”.
Having found that there was illegality in sentencing the sentence of probation placement for two years is hereby revised and altered and substituted with one of a fine of Kshs.200,000/- in default one year imprisonment.
Ruling delivered dated and signed this 15th March 2015 in open court and in the presence of learned counsel for prosecution Mr. Waweru.
Respondent in person
Court assistants – Mercy/Rotich.
M. MUYA
JUDGE
15/3/2017