ABDI AZIZ SALAO v REPUBLIC [2012] KEHC 4597 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

HIGH COURT CRIMINAL REVISION NO. 6 OF 2012

ABDI AZIZ SALAO alias LIQE ADAN  ............................APPLICANT

VERSUS

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

R U L I N G

1. The applicant Abdi Aziz Salao alias Liqe Abdi Adan was convicted and sentenced for the offences of knowingly being in possession of a passport for which he could not give a proper account contrary to Section 54(1)(d)of theKenya CitizenshipandImmigration Act 2011 and of being unlawfully present in the country contrary to Section 53(1)(i) of the Kenya Citizenship and Immigration Act.

2. He was fined Kshs.600,000/= in default to serve 1 year imprisonment in count I, and Kshs.100,000/= in default to serve 6 months imprisonment in count II. The conviction followed his own plea of guilty.

3. In his submission argued on the 15th February 2012 he did not contest the conviction. He however pleaded for the court’s mercy on sentencing telling the court that he is a man of meagre means and cannot raise the fine imposed. Further that the passport that got him into trouble was given to him by brokers in this country. All he was trying to do was to reconnect with his family in the USA.

4. The learned State Counsel Mr. Mulati in opposing the appeal, drew the court’s attention to the fact that the appellant was convicted on his own plea of guilty, is serving a lawful sentence, and that in fact, the sentence imposed was quite lenient considering that, the sentence provided by law in count I a fine of is Kshs.5 million, in default five years imprisonment, while the sentence provided in count II is a fine of Kshs.500,000/= or three years imprisonment.

5. I respectfully agree with the learned State Counsel on all three grounds. In imposing fine during sentencing, the courts do not ordinarily consider the financial circumstances of the offender. The fine imposed will be as provided by law, and is usually tailored to fit the offence not the offenders pocket.

6. I do agree with the learned State Counsel Mr. Mulati that, the court in sentencing the appellant was quite lenient, because the law provides that both the fine and a custodial sentence may be handed to the offender simultaneously. In this case the appellant did not receive the second limb of the sentence which would have been custodial sentence, without option of fine, while the fine that was imposed cannot be termed harsh or excessive.

7. For the foregoing reasons I decline to interfere with the sentence as imposed by the learned magistrate. I dismiss the appeal.

SIGNED DATEDandDELIVEREDin open court this 8thday of March2012.

L. A. ACHODE

JUDGE