[2022] KEHC 27092 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAROK

MISC. CRIMINAL APPLICATION NO. E015 OF 2021

(CORAM: F.M. GIKONYO J.)

(Being an application for revision of sentence passed by Hon. G.N. Wakahiu (C.M) in Narok CMCR No. E475 of 2021 on 30. 04. 2021)

ZABLON RAJAB OKELLO.......APPLICANT

-VERSUS-

REPUBLIC...............................RESPONDENT

JUDGMENT

1. Sought in the undated application filed on 17th June 2021 is revision of the sentence; reduce prison term, give option of fine, and ‘’transfer’’ compensation ordered against the applicant to be borne by a person other than the applicant.

2. The applicant was convicted on his own plea of guilt for the offence of transporting forest products in a state forest contrary to Section 64(1) as read with Section 62(2) of the Forest Conservation and Management Act no. 34 of 2016. He was sentenced to serve 2 years’ imprisonment, pay a fine of Kshs. 60,000/= to the court and Kshs 60,000/= as compensation to the forest department.

3. The grounds supporting the application were set out in the application and the supporting affidavit.

4. The major ground in support of his application is that he was just a passenger in the said vehicle and was not an owner of the forest produce.

5. These grounds were further adumbrated in the written submissions.

6. The applicant submitted that he is 47 years, a father of three children and a breadwinner.

7. He submitted further that while in prison he has undertaken some rehabilitation programs and has been awarded a certificate in bible studies; and that he has reformed. He is also remorseful. He relied in the case of Michael Kalewa Vs Republic [2018]

8. According to the applicant, the sentence imposed on him is too harsh and excessive. He relied on Article 50(2), 27(1) of the Constitution and Section 333(2) of the CPC. He also asks the court to deem the time served to be sufficient.

9. The applicant prayed that this court separates the two fines; that he pays the Kshs. 60,000/= while the owner of the lorry pays the Kshs. 60,000/= to the forest department.

Respondent: application misguided

10. The respondent opposed the application on the ground that the application is misguided as it does not amount to an appeal nor a revision. The respondent cited Section 348 of the CPC.

11. The respondent submitted that the fine imposed was well within the limits however, conceded the sentence ought not exceed six months. They cited Section 64(2) of the Forest Conservation and Management Act.

12. The respondent submitted that the trial court was right in awarding compensation to Kenya Forest Service. That the trial court took into account the valuation report produced in court.

13. The respondent submitted that the applicant having pleaded guilty cannot turn around and apportion payment upon the owner of the vehicle. That plea was taken in accordance with the laid down law and procedures. Mr. Karanja argued that vicarious liability is not applicable in criminal law. Therefore, the owner of the vehicle is not liable unless he was charged as a co- accused and accordingly convicted.

14. The respondent in conclusion, prayed that the application be dismissed. The respondent urged that applicant to follow the right procedure if dissatisfied with trial court’s determination.

ANALYSIS AND DETERMINATION

Issue

15. The single issue arising from the application herein and the rival submissions of the parties, is: -

1) Legality and extent of the sentence imposed upon the applicant.

16. Notably, the appellant was convicted on his own plea of guilt. He has not challenged the plea as being unequivocal. Thus, he is only entitled to appeal on, or seek revision of the extent or legality of sentence. See Section 348 of the Criminal Procedure Code below: -

“348. No appeal on plea of guilty, nor in petty cases

No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.’’

Revision Jurisdiction

17. Revisionary jurisdiction of the High stems from the broader supervisory jurisdiction of the High Court conferred under article 165(6) of the Constitution, thus:

(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

18. And, under article 165(7) of the Constitution: -

(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

19. In my view, the words in article 165(7) of the Constitution,‘’…and may make any order or give any direction it considers appropriate to ensure the fair administration of justice’’ widens the scope and purpose of revisionary jurisdiction; hence, the terms used in section 362 of the CPC, should be seen and interpreted within the expanded scope as commanded of construction of existing law in section 7 of the Transitional Provisions in the Sixth Schedule of the Constitution. See also section 362 of the CPC cited below:

362. The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

20. Some of the remedies the court may grant in a revision are provided in Section 364 (1) of the Criminal Procedure Code that:

“(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—

a. in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;

b. in the case of any other order other than an order of acquittal, alter or reverse the order.

c. in proceedings under section 203 or 296(2) of the Penal Code, the Prevention of Terrorism Act, the Narcotic Drugs and Psychotropic Substances (Control) Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti-Money Laundering Act, the Sexual Offences Act and the Counter-Trafficking in Persons Act, where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.”

Legality and Extent of Sentence

21. The penalty for the offence of removing forest produce is prescribed in Section 64 (2) of the Forest Conservation and Management Act as follows:

‘2. Any person who contravenes the provisions of subsection (1) of this section commits an offence and is liable on conviction to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment.’

22. Section 68 (1) (a) of the Forest Conservation and Management Act provides for additional orders of forfeiture and compensation as follows:

‘68. (1)Where a person is convicted of an offence of damaging, injuring or removing forest produce from any forest, the forest produce shall be forfeited to the owner.

The court may in addition to any other ruling order—

(a) that such person pays to the forest owner, by way of compensation, a sum equal to the determined value of the forest produce so damaged, injured or removed and where the value cannot be estimated, ten thousand shillings for each offence:

Provided that the value of the forest produce shall be either the commercial value of the forest produce or the cost of restoring the damage caused to the forest as a result of the offence committed, whichever is higher.’’

23. The additional orders on compensation or forfeiture may or may not be granted depending on the circumstances of the case. But, as always, judicial discretion should be exercised upon defined principles of law; not in a manner depicting a mind a bundle of inconsistent whims or affectations; but a judicious and cultivated mind of clear circumspection to do justice in accordance with the law.

24. Forfeiture should be a favorite option in cases where a property or item or vessel had been used to commit or in connection with a crime. Except, however, forfeiture, is ordered after due process has been followed especially where the property or item to be forfeited is claimed to belong to third parties. See, for instance, section 389A of the CPC.

25. The issue in this case is, however, on compensation. The applicant has invited the court to separate compensation from the fine; impose compensation on the owner of the produce and the lorry whilst he pays the fine. There is no basis in law or the circumstances of this case on which to order such split of sentence. I am aware that, on this point, non-applicability of the doctrine of vicarious liability in criminal law has been argued by the respondent. Although criminal law keeps away from the doctrine of vicarious liability on the basis that a person is personally liable for own criminal acts, it is not worthless to entertain a thought in perspective, of criminal culpability of co-conspirators in a conspiracy, or of accomplices or abettors, or persons with common intention to commit crime, or of participators of a crime which leads to another crime which was foreseeable, or of directors or corporate managers’ liability for corporation’s liability. But, this is a debate for another day.

26. Be that as it may, in the circumstances of this case, the trial magistrate lawfully ordered compensation against the applicant on the basis of evidence before the court. The argument by the applicant to the contrary, and more particularly that, he was a mere passage in the lorry, does not hold sway and is rejected.

Of option of fine

27. What about arguments on right to option of fine as opposed to imposition of both fine and imprisonment?

28. The law and policy of law in sentencing is that, where the law provides for a fine or imprisonment or both, unless the court for good reasons considers it appropriate to impose both fine and imprisonment, the accused person should be given an option of a fine first. I am content to cite Mwera J (as he then was) in Annis Muhidin Nur vs Republic, High Court Criminal Appeal No. 98 of 2001, that:

“… unless circumstances obtain which irresistibly [impede] a trial Court from imposing a fine first where the law provides for a fine in default of a prison term, the option of a fine must be visited first. This is a sound and tested principle in the art of sentencing …”

29. In this case, the trial court meted out, inter alia, imprisonment for 2 years and a fine. The relevant law cited above provides for imprisonment for six months or fine not exceeding one hundred thousand or both such fine and imprisonment. An imprisonment of 2 years is not, therefore, lawful sentence in light of the applicable law. This is an error which invites quick intervention of this court.

30. See Ogolla S/o Owuor v R {1954} EACA 270 on when the Court will interfere with discretion of trial court in sentencing, that:

“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors. This was further echoed in the dictum of the cases in R v Shershowsky {1912} CCA TLR 263 as emphasized in Shadrack Kipkoech Kogo v R Criminal Appeal No. 253 of 2003 thus “Sentence is essentially an exercise of discretion by the trial Court and for this Court to interfere it must be shown that in passing the sentence, the sentencing Court took into account an irrelevance factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered.” (See also Sayeka v R {1989} KLR 306)

31. Accordingly, I set aside the sentence of imprisonment for 2 years and in lieu thereof sentence the applicant to imprisonment for six months.

32. The nature and the prevalence of the offence when looked at from the lens of court’s constitutional obligation to protect and conserve the environment, there is good reason to impose both imprisonment and fine upon the applicant.

Orders

33. The applicant is sentenced to serve six months’ imprisonment, pay a fine of Kshs. 60,000 to court and in default serve six months’’ imprisonment, and pay Kshs. 60,000/= as compensation to the Kenya Forest Service. The sentences will run consecutively. It is so ordered. Sentence to run from date of conviction. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 9TH DAY OF MARCH, 2022

F. M. GIKONYO

JUDGE

In the presence of:

1. The applicant

2. Ondimu

3. for the Republic

4. Mr. Kasaso CA