[2013] KEHC 2121 (KLR)
The trial magistrate imposed a sentence and compensation order that exceeded the statutory limits under the Trespass Act, which prescribes a maximum fine of Kshs 500 or imprisonment for up to two months. The additional sentence of a fine of Kshs 20,000, four months' imprisonment, and compensation of Kshs 32,350 was...
Source-derived case information.
- Citation
- [2013] KEHC 2121 (KLR)
- Parties
- Applicant: Simeon Muvengei Kamela; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 4 of 2013
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- sentence and compensation order set aside; applicant conditionally discharged
- Legal Topics
- Illegal Grazing, Sentencing Illegality, Compensation Orders, Criminal Revision, Trespass Act, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simeon Muvengei Kamela
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the sentence imposed by the trial magistrate exceeded the statutory limits under the Trespass Act.
- 2 Whether the order for compensation to the complainant was proper in the circumstances of the criminal proceedings.
Ratio Decidendi
The trial magistrate imposed a sentence and compensation order that exceeded the statutory limits under the Trespass Act, which prescribes a maximum fine of Kshs 500 or imprisonment for up to two months. The additional sentence of a fine of Kshs 20,000, four months' imprisonment, and compensation of Kshs 32,350 was not supported by law. The High Court found the sentence illegal and the compensation order prejudicial, as the circumstances leading to civil liability were not carefully examined. The court exercised its revisionary jurisdiction to reverse the sentence, discharge the applicant conditionally, and vacate the compensation order, directing that any compensation be pursued through...
Court Disposition
sentence and compensation order set aside; applicant conditionally discharged
Orders
- The sentence imposed by the trial magistrate is reversed.
- The applicant is discharged on condition that he commits no offence during the next twelve months from the date of this order.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL REVISION NO 4 OF 2013
SIMEON MUVENGEI KAMELA………………………………..APPLICANT
VERSUS
REPUBLIC……………………………………………………RESPONDENT
RULING ON REVISION
Simeon Muvengei Kamela (applicant) was charged before the Mwingi Resident Magistrate with illegal grazing of animals contrary to section 3 (1) of the Trespass Act. He is alleged to have grazed his cows on private farm belonging to Martha Mwathi Musya. The said farm is said to have had crops which are claimed to have been destroyed as a result of the illegal grazing.
After a full trial the applicant was found guilty, was convicted and sentenced to a fine of Kshs 20,000 in default to serve four (4) months imprisonment. In addition the applicant was sentenced to serve another one (1) month and pay compensation to the complainant amounting to Kshs 32,350.
The applicant is aggrieved and brought this complaint during this Court’s prison visit to Waita G.K Prision, Mwingi District. This necessitated the calling of the file from Mwingi for this court to examine it under the provisions of Section 362 of the Criminal Procedure Code with a view to revising the orders of the lower court.
The applicant was charged under section 3 (1) of the Trespass Act which does not provide penalty. The penalty for offences falling under this section is found under section 11 of that Act and it is a paltry Kshs 500 or to imprisonment for a term not exceeding two (2) months or to both. Clearly the sentence by the Mwingi Resident Magistrate (I.W. Gichobi) is illegal. There is no justification at all why the judicial officer imposed such a sentence which has no basis in law.
On the issue of compensation, I have reviewed the evidence. The offence is alleged to have occurred on 17th January 2013 according to the evidence of Kathina Kyalo (PW2) who testified that she found cows belonging to the applicant grazing on her mother’s crops. She testified that she drove the animals away and went to report to her mother. Her brother Muthui (PW3) testified about the events of 17th and 19th January 2013 when he stated that the cows belonging to the applicant grazed on their land. The report from the Agricultural Officer (PW5) is that he visited the farm on 30th January 2013 and assessed the damage on the crops as Kshs 32,350. While under section 175 (2) of the Criminal Procedure Code a court can order compensation in a criminal case, care must be taken to avoid situations where an accused person could be prejudiced. It is my view that ordering compensation of Kshs 32,350 to the complainant in circumstances where the court did not carefully examine the circumstances leading to the civil liability is prejudicial.
While this court considers that the applicant and the complainant are related neighbours and from the evidence that the applicant’s cows have been grazing on and off on the complainant’s farm, this court finds that the trial magistrate overstepped her legal mandate by imposing an illegal sentence. I however do not want to ignore the evidence that the applicant has been negligent in allowing his cows to stray to complainant’s land. I will, and do hereby, invoke the provisions of section 364 (1) (b) of the Criminal Procedure Code and reverse the sentence. The applicant is hereby discharged on condition that he commits no offence during the next twelve months from the date of this order. The order for payment of compensation of Kshs 32,350 is hereby vacated. The complainant is at liberty to pursue compensation in a civil suit. It is so ordered.
S. N. MUTUKU
JUDGE
Dated, signed and delivered this 29th day of August 2013.