[2016] KEHC 7782 (KLR)
The court found that although the sentence imposed was within the legal limits and reasonable, the applicant had already served a substantial portion of the custodial sentence due to inability to pay the fine. Considering the applicant's imminent repatriation and the period already served in custody, the court...
Source-derived case information.
- Citation
- [2016] KEHC 7782 (KLR)
- Parties
- Applicant: Tesfaye Girma Aram; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 81 of 2015
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application allowed; sentence revised; applicant released and repatriated
- Legal Topics
- Sentencing Revision, Immigration Offences, Plea of Guilty, Forged Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tesfaye Girma Aram
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed on the applicant was harsh or excessive in the circumstances.
- 2 Whether the court should revise the sentence imposed by the trial court under Section 362 of the Criminal Procedure Code.
Ratio Decidendi
The court found that although the sentence imposed was within the legal limits and reasonable, the applicant had already served a substantial portion of the custodial sentence due to inability to pay the fine. Considering the applicant's imminent repatriation and the period already served in custody, the court determined that sufficient punishment had been meted out. The penalty was set aside and substituted with an order for immediate release and repatriation at the State's cost.
Court Disposition
application allowed; sentence revised; applicant released and repatriated
Orders
- The penalty imposed is set aside and substituted with an order that the applicant has served sufficient punishment and is set free unless otherwise lawfully held.
- The applicant shall be repatriated back to Ethiopia at the cost of the State.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO.81 OF 2015
TESFAYE GIRMA ARAM………………………...………………..APPLICANT
VERSUS
REPUBLIC………………………………..………………………..RESPONDENT
RULING
The Applicant was charged alongside another in the Chief Magistrate’s Court at Nairobi in Cr. Case No. 1769 of 2014. In his respect, he was charged in count I with the offence of possessing and using a passport in which a visa has been forged contrary to Section 54(1)(c) of the Kenya Citizenship and Immigration Act of 2011. It was alleged that on 8th December, 2014, at Jomo Kenyatta International Airport within Nairobi County being an Ethiopian National and holder of Ethiopian passport No. [particulars withheld] was found possessing and using a passport with a forged Mozambique Visa endorsed on page 8 of the said passport while departing Kenya to Maputo-Mozambique aboard Kenya Airways Fright KQ740.
The Applicant was convicted on his own plea of guilty. He was fined Kshs. 500,000/= in default serve 24 months imprisonment. Upon payment of his fine, or serving the jail term, he was to be repatriated to his home of origin.
The applicant has come to this court by way of a Chamber Summons filed on 17th June, 2015 seeking a revision of the sentence imposed. He pleaded that the sentence was harsh as he could not afford the fine. Since his arrest he has been in prison for one year and two months. He urged the court to be merciful to him as he had a family that was relying on him in Ethiopia. On behalf of the Respondent, learned State Counsel Ms. Sigei did not oppose the application as long as the Applicant would cater for his repatriation costs back to Ethiopia.
I have accordingly considered the application and the respective submissions. The application is brought pursuant to Section 362 of the Criminal Procedure Code so that the court can satisfy itself as to the correctness or legality of the sentence passed and the propriety of the trial court proceedings. Any person who is convicted for the offence provided under Section 54(1)(c) of the Kenya Citizenship and Immigration Act, 2011 shall be liable under Sub-section (2) to a fine not exceeding 5 million shillings or to imprisonment for a term not exceeding 5 years or to both. It follows then that the sentence imposed against the Applicant was not only legal but reasonable in the circumstances. I however take into account that the Applicant having been presented to court for plea on 11th December, 2014 has been in the prison for one year and six months. He is therefore almost to complete his sentence. He was unable to pay the fine imposed which means that even if the application is not allowed he shall still not afford to pay a commensurate fine to the balance of the jail term. On considering that he shall be repatriated anyway, it is only fair that the application be considered positively.
In the result, I allow the application, I set aside the penalty imposed and substitute it with an order that the Applicant has served sufficient punishment and is hereby set free unless otherwise lawfully held. He shall be repatriated back to Ethiopia at the cost of the State. It is so ordered.
DATED and DELIVERED in Nairobi this 31st day of MAY, 2016
G.W. NGENYE-MACHARIA
JUDGE
In the presence of:
Applicant in person.
M/s Aluda for the Respondent.