Republic v Mercy Chelangat [2017] KEHC 794 (KLR)
- Citation
- [2017] KEHC 794 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- GO Shikwe
- Case number
- Criminal Revision 7 of 2016
- Language
- English
More details
- Court
- High Court
- Panel
- GO Shikwe
- Case number
- Criminal Revision 7 of 2016
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
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.
- In default of payment of the fine, the respondent shall serve one year imprisonment.
02
Material facts
Parties
Republic
Applicant Counsel: Mr. WaweruMercy Chelangat
RespondentAmounts and remedies
- Fine Imposed: KES 200,000
03
Procedural history
Posture
Criminal Revision / Ruling on Application for Revision of Sentence
04
Questions and positions
Legal issues
- 01
Whether the sentence of probation imposed by the trial court was illegal under the Prohibition of Female Genital Mutilation Act.
- 02
Whether the High Court should revise the sentence to comply with the statutory minimum sentence.
Party arguments
- Applicant
- The prosecution argued that the sentence of probation for two years was illegal as the Prohibition of Female Genital Mutilation Act prescribes a minimum sentence of three years imprisonment or a fine of not less than two hundred thousand shillings or both. The applicant sought revision of the sentence to align with the statutory requirements.
- Respondent
- The respondent pleaded guilty and admitted the facts, stating she acted under peer pressure. No substantive legal argument against the revision was advanced by the respondent.
05
Court’s reasoning
Legal principles
- 01
Section 29, Prohibition of Female Genital Mutilation Act No. 32 of 2011
Where a statute prescribes a minimum sentence, the court has no discretion to impose a lesser sentence.
- 02
Section 362, Criminal Procedure Code
The High Court has power to revise sentences imposed by subordinate courts if they are illegal or improper.
06
Ratio, limits and disposition
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.
Obiter and limits
- Parliament in its wisdom decided to remove the courts discretion in sentencing by imposing minimum sentences in this Act.
Court disposition
sentence revised and substituted
- The sentence of probation for two years is set aside.
- The respondent is sentenced to pay a fine of Kshs. 200,000.
- In default of payment of the fine, the respondent shall serve one year imprisonment.
Source and reliance status
High Court
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Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
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
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