[2013] KEHC 1273 (KLR)
The court found that the applicants were improperly charged under a non-existent provision (Section 41(1)(b)) for Count 1, which rendered the conviction and sentence on that count unlawful; thus, the applicants were acquitted on Count 1. For Counts 2 and 3, the court held that the sentences imposed were within the...
Source-derived case information.
- Citation
- [2013] KEHC 1273 (KLR)
- Parties
- Applicant: Simon David Harris; Applicant: Richard Wangwe Adera; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 99 of 2013
- Procedural Posture
- Criminal Revision / Revision Determination
- Outcome
- Partial acquittal and partial confirmation of sentence.
- Judges
- RPV Wendoh
- Legal Topics
- Wildlife Offences, Sentencing Principles, Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon David Harris
Applicant
Richard Wangwe Adera
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Revision Determination
Legal Issues
- 1 Whether the applicants were properly charged under the correct statutory provisions.
- 2 Whether the sentences imposed by the magistrate's court were lawful and appropriate.
- 3 Whether the court should exercise its revisionary jurisdiction to interfere with the sentences imposed.
Ratio Decidendi
The court found that the applicants were improperly charged under a non-existent provision (Section 41(1)(b)) for Count 1, which rendered the conviction and sentence on that count unlawful; thus, the applicants were acquitted on Count 1. For Counts 2 and 3, the court held that the sentences imposed were within the statutory limits and took into account relevant aggravating and mitigating factors, including the prevalence of the offence, the value and rarity of the wildlife involved, and the applicants' status as first offenders. The court declined to interfere with the magistrate's exercise of discretion on sentencing for Counts 2 and 3, finding the sentences lawful and appropriate. The...
Court Disposition
Partial acquittal and partial confirmation of sentence.
Orders
- Applicants acquitted on Count 1 as charged under a non-existent provision.
- Sentences on Counts 2 and 3 (one year imprisonment each) to run concurrently are upheld.
Full Case Text
Judgment text and source record
23 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
REVISION NO. 99 OF 2013
SIMON DAVID HARRIS…………..…………….1ST APPLICANT
RICHARD WANGWE ADERA…………2ND APPLICANT
VERSUS
REPUBLIC………………………………….RESPONDENT
REVISION ORDER
Simon David Harris and Richard Wangwe Adera appeared before the Chief Magistrate’s Court at Naivasha charged with three offences namely:-
Possession of Government trophy contrary to Section 4(1)(b) as read with Section 521(1) of the Wildlife (conservation and Management) Act Cap 476 Laws of Kenya;
Failing to make a report of obtaining possession of Government Trophy contrary to Section 39(3)(a) of the Wildlife (Conservation and Management) Act;
Dealing in Government trophy contrary to Section 39(3)(b) of the Wildlife (Conservation and Management) Act.
The accused pleaded guilty to the three charges, convicted and were sentenced as follows:-
Count 1 – Each to serve 3 years imprisonment;
Count 2 – Each to serve one year imprisonment;
Count 3 – Each to serve one year imprisonment.
Sentences were ordered to run concurrently. It was further ordered that the 1st accused be repatriated to his country after completion of the sentence.
This matter was placed before me for purposes of revision pursuant to the supervisory powers donated to this court under Section 362 as read with Section 364 of the Criminal Procedure Code. On the first charge, the accused persons were charged under Section 41(1)(b) of the Wildlife Act. Section 41(1)(b) does not exist. Perhaps they should have been charged under Section 42(1)(b) of the Act Cap 376 Laws of Kenya. Since Section 41(1)(b) does not disclose any offence as charged, the accused persons are hereby acquitted of the charge.
The second charge was under Section 39(3()a) of the Act. A person found guilty under that subsection is liable to a fine not exceeding Kshs.10,000/- or to imprisonment for a term not exceeding 12 months or to both.
In Count 3, they were charged under Section 39(3)(b). One found guilty under that section is liable to a fine of Kshs.10,000/- or imprisonment for a term not exceeding 12 months or to both. Before sentence the court considered the fact that accused persons were first offenders, the value of the subject matter, which the prosecution said stood at Kshs.300,000/- in Kenya and Kshs.1 million abroad, and the fact that the offences are prevalent in the country, that the said snakes are a rare species found only in Kenya and it seems the 1st accused had come to Kenya specifically to get the snakes and therefore to commit the said offences. Taking all the above into account, the fact that poachers are coming into the country and in collusion with the local people, depleting the country of its treasured wildlife. In view of all the above, I decline to interfere with the magistrate’s exercise of discretion on the sentence in respect of Count 2 and 3. The sentences are lawful. The accused persons should serve 1 years imprisonment on each count, the sentences to run concurrently and the 1st accused be repatriated to his home country upon completion of the term. It is so ordered.
DATED and DELIVERED this 29th day of October, 2013.
R.P.V. WENDOH
JUDGE