[2021] KEHC 4927 (KLR)
The trial magistrate erred by imposing a default custodial sentence of two years' imprisonment, which exceeded the statutory maximum of six months for the offence of smoking on a lavatory in an aircraft. The High Court, exercising its revisionary jurisdiction, found that the sentence was unlawful and revised it to a...
Source-derived case information.
- Citation
- [2021] KEHC 4927 (KLR)
- Parties
- Appellant: Said Sudi Mwakwabwira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E150 of 2021
- Procedural Posture
- Criminal Appeal / Ruling on Sentence Revision
- Outcome
- sentence revised
- Legal Topics
- Sentencing Principles, Revision of Sentence, Criminal Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Sudi Mwakwabwira
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Sentence Revision
Legal Issues
- 1 Whether the sentence imposed by the trial magistrate exceeded the statutory maximum for the offence charged.
- 2 Whether the applicant's mitigation as a first offender warranted a revision of sentence.
Ratio Decidendi
The trial magistrate erred by imposing a default custodial sentence of two years' imprisonment, which exceeded the statutory maximum of six months for the offence of smoking on a lavatory in an aircraft. The High Court, exercising its revisionary jurisdiction, found that the sentence was unlawful and revised it to a fine of Kshs. 250,000 in default to serve three months' imprisonment, taking into account the applicant's status as a first offender and his mitigation.
Court Disposition
sentence revised
Orders
- The sentence is revised to a fine of Kshs. 250,000 in default to serve three months' imprisonment.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. E150 OF 2021
SAID SUDI MWAKWABWIRA...................................................APPLICANT
VERSUS
REPUBLIC.................................................................................RESPONDENT
(Being an appeal against the judgement and sentence passed by Hon. E. Nyaloti, CM on 11th May 2021 in Mombasa Chief Magistrate’s Court Criminal Case No. E1146 of 2021)
RULING
1. SAID SUDI MWAKWABWIRA pleaded guilty to the charge of smoking on a lavatory in an aircraft contrary to section 59(1) (a) of the civil Aviation Security Regulations of 2015 Legal Notice No. 190.
2. He was fined Kshs. 300,000/= in default to serve 2 years imprisonment.
3. The appellant seeks that this court considered he is a 1st offender and consider his mitigation and revise the sentence pursuant to Section 362 to 364 of the Criminal Procedure Code.
4. I have looked at the Section under which appellant was charged and confirmed that it provides for a penalty of fine not exceeding Kshs. 500,000/= or imprisonment not exceeding 6 months or both.
5. The trial magistrate was therefore in error to impose 2 years imprisonment in default of payment of the fine of Kshs. 300,000/=.
6. In consideration of the applicant’s mitigation, this court revises the sentence to Kshs. 250,000/=in default to serve 3 months jail term.
7. Orders Accordingly.
DATED, SIGNED AND DELIVERED IN OPEN COURT /ONLINE THROUGH MS TEAMS, THIS 22ND DAY OF JULY, 2021
HON. LADY JUSTICE A. ONG’INJO
JUDGE
In the presence of:-
Ogwel – Court assistant
Ms. Karanja for Respondent
Applicant – No appearance
Mr. Were Advocate for Applicant
COURT
Certified copies to be supplied on payment of copying charges.
HON. LADY JUSTICE A. ONG’INJO
JUDGE