[1979] KEHC 16 (KLR)
The court found that the magistrate's sentence was both factually and legally inadequate. The failure to impose separate sentences for each count contravened established legal principles. While the accused's age, lack of financial gain, and the delay in judgment were considered as mitigating factors, they did not...
Source-derived case information.
- Citation
- [1979] KEHC 16 (KLR)
- Parties
- Appellant: Republic; Defendant: Mohamed Hassan
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 21 of 1979
- Procedural Posture
- Criminal Revision / Judgment
- Outcome
- original sentence set aside; concurrent sentences of nine months imposed on each count
- Judges
- E Trevelyan, SK Sachdeva
- Legal Topics
- Forgery, Uttering False Documents, Fraudulent Obtaining of Insurance, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
Mohamed Hassan
Defendant
Procedural Posture
Criminal Revision / Judgment
Legal Issues
- 1 Whether the sentence imposed by the magistrate was legally and factually adequate for the offences of forgery, uttering, and obtaining a cover note.
- 2 Whether the accused's age and lack of financial gain from the offence should mitigate the sentence.
- 3 Whether the delay between hearing and judgment delivery affected the fairness of the proceedings.
Ratio Decidendi
The court found that the magistrate's sentence was both factually and legally inadequate. The failure to impose separate sentences for each count contravened established legal principles. While the accused's age, lack of financial gain, and the delay in judgment were considered as mitigating factors, they did not justify the discharge granted by the magistrate. The court set aside the original award and imposed concurrent sentences of nine months on each count, holding that this outcome properly reflected the seriousness of the offences while taking into account all mitigating circumstances presented.
Court Disposition
original sentence set aside; concurrent sentences of nine months imposed on each count
Orders
- The award made by the magistrate is set aside.
- Concurrent sentences of nine months each are imposed on each count.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CRIMINAL (REVISION) CASE NO 21 OF 1979
REPUBLIC......................................................APPELLANT
VERSUS
MOHAMED HASSAN...........................................ACCUSED
JUDGMENT OF THE COURT
The accused was charged with, and convicted upon, charges of forgery, uttering and obtaining a cover note. In the words of the magistrate “the accused is the one who engineered a fraud to cheat the insurance company after his lorry had an accident”, so he was satisfied that there had been deliberate fraud. But then, without calling on the prosecutor or defence counsel, he went on, “In this case nobody lost anything. The accused is an old mzee. Discharged for six months.” It is true that no money was got from the fraud; but that was not the charge, although we bear that in mind. We doubt that the accused who is fifty years old qualifies on sight for the description given him. But never mind. He is fifty years old. But beyond that, the award which the magistrate made, unaided, was, on the facts patently inadequate and in law quite wrong. On the facts, it did not recognise the gravity of the offence, even taking in all that Mr Mwaura has urged, and in law because you must have a separate sentence or award for each count on which a conviction is had; see Mohamed Warsama H T Musa Aboker Bah Majelo v R(1956) 23 EACA 576. Of course, no real gain resulted to the accused who has, as a result of all that happened indeed lost a fair amount of money; but the fact that one is burdened with years, while for taking into account, is no cushion, of itself for criminal activity. Of course, there has been a delay which was, on the face of it, overlong between the end of the hearing and the delivery of judgment; but it does not, as we believe, offend the Constitution; nor does it go further than to be taken fully into account. Having heard what Mr Rebelo urged before us, we set aside the award made, and having taken into account all that Mr Mwaura has urged before us we set concurrent sentences of nine months each on each count. This we believe, fully takes into account the matter of delay and also all that Mr Mwaura said in respect of it and generally.
Order accordingly.
Dated and delivered at Nairobi this 26th day of September 1979.
E. TREVELYAN
JUDGE
S.K SACHDEVA
JUDGE