[2018] KEHC 2380 (KLR)
The High Court found that the trial magistrate imposed a sentence of Kshs.200,000 fine or one year imprisonment, which exceeded the statutory maximum of Kshs.100,000 fine or six months imprisonment under the Forest Conservation and Management Act. The sentence was therefore unlawful and was set aside. The High Court...
Source-derived case information.
- Citation
- [2018] KEHC 2380 (KLR)
- Parties
- Applicant: Republic; Respondent: Silale Ole Tumate
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 134 of 2018
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- Sentence and order set aside; matter remitted to trial court for proper procedure on forfeiture; lawful sentence substituted.
- Legal Topics
- Sentencing Illegality, Forfeiture of Property, Forest Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Silale Ole Tumate
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the sentence imposed by the trial court exceeded the statutory maximum and was therefore unlawful.
- 2 Whether the order returning the tractor used in the commission of the offence to its owner was contrary to the law and proper procedure for forfeiture was followed.
Ratio Decidendi
The High Court found that the trial magistrate imposed a sentence of Kshs.200,000 fine or one year imprisonment, which exceeded the statutory maximum of Kshs.100,000 fine or six months imprisonment under the Forest Conservation and Management Act. The sentence was therefore unlawful and was set aside. The High Court substituted it with a lawful sentence of Kshs.50,000 fine or three months imprisonment. Additionally, the trial court's order returning the tractor to its owner was found to be unlawful because the mandatory procedure under section 389A of the Criminal Procedure Code, requiring notice to show cause before forfeiture, was not followed. The order was set aside and the matter...
Court Disposition
Sentence and order set aside; matter remitted to trial court for proper procedure on forfeiture; lawful sentence substituted.
Orders
- The sentence of Kshs.200,000 fine or one year imprisonment is set aside and substituted with a sentence of Kshs.50,000 fine or three months imprisonment.
- The order returning the tractor to its owner is set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
CRIMINAL REVISION NO. 134 OF 2018
REPUBLIC............................... APPLICANT
-VERSUS-
SILALE OLE TUMATE......RESPONDENT
(Being Revision from the original conviction and sentence dated 26th July 2018 in the Chief Magistrate’s Court at Narok in Criminal Case No. 279 of 2018, Republic V. Silale Ole Tumate.)
ORDER ON REVISION
1. This matter has been reported for orders to this court by the Deputy Registrar.
2. The respondent was convicted and sentenced to a fine of Shs.200,000/= in default to serve one year imprisonment, by the resident magistrate, in respect of removing forest produce without a permit from the managing director, contrary to section 64(1) (a) as read with section 64(2) of the Forest Conservation Management Act. The particulars of the offence allege that the respondent was found removing 300 cedar posts valued at Kshs.90,000/= using a Massey Fergus tractor registration No.KBE 994G.
3. At the conclusion of the trial, the tractor that was used in transporting the cedar posts was ordered to be returned to its owner (Saimon Ntayia Ole Sempele). This was done upon application by his advocates (M/S Ochego Onduso).
4. The tractor used to transport the cedar posts was subject to forfeiture. The provisions of section 389A of the Criminal Procedure Code (Cap. 75) require that a notice to show cause why the tractor should not be forfeited to the state. This was not done. It is clear that the tractor be returned to its owner was contrary to the law.
5. In the light of those provisions of the law and the circumstances of the offence, the magisterial order which returned the tractor to the owner was unlawful.
6. It therefore follows that the said order is hereby set aside. In its place the matter is hereby sent back to the trial court to comply with the provisions of section 389A of the Criminal Procedure Code.
7. According to section 64(1)(a) as read with section 64 (2) of the Forest Conservation and Management Act, the maximum sentence provided for is Shs.100,000/= or to imprisonment of a term not exceeding six (6) months or both. It therefore follows that the sentence imposed of Shs.200,000/= in default one (1) year imprisonment is unlawful and I hereby set it aside. In its place, I hereby substitute a sentence of Sh.50,000/= in default to serve three (3) months imprisonment. Those are the orders of this court.
Order in revision dated this 9th day of November, 2018
J. M. Bwonwonga
Judge
9/11/2018