Joseph Kipkemboi Rob, Joel Kiptoo Rob, David Kimeli Rob, Joel Kiplangat Rob & Musa Kibet Rob v Republic [2014] KEHC 812 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CRIMINAL APPEAL NO. 20 OF 2014

JOSEPH KIPKEMBOI ROB................................................1ST APPELLANT

JOEL KIPTOO ROB............................................................2ND APPELLANT

DAVID KIMELI ROB............................................................3RD APPELLANT

JOEL KIPLANGAT ROB......................................................4TH APPELLANT

MUSA KIBET ROB...............................................................5TH APPELLANT

VERSUS

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

(From the original conviction and sentence in Criminal Case No. 106 of 2013 in the Senior Resident Magistrate's court  at Tamu)

J U D G M E N T

The appellants were charged with the offence of trespass contrary to section 3 (1) as read with section 11 of the Trespass Act Chapter 294 Laws of Kenya. They were accused of trespassing into land parcel No. Kisumu/Fort Tenan 68/455 owned by one Joseph Aluoch Agenga. They were then sentenced to 30 days imprisonment without any option of fine hence this appeal.

During the hearing of the appeal, counsel for the appellants abandoned the rest of the grounds and limited himself to the last ground namely that the sentence was harsh in the circumstances and that the court should have given an option of fine.

Having read the proceedings, the counsel for the appellants was right in abandoning the other grounds as the case against the appellants was proved sufficiently. The appellants admitted that they trespassed onto the complainant's parcel of land.

But was the sentence excessive?  Section 11 of the Trespass Act provides two modes, namely imprisonment for a period of not less than two months or a fine not exceeding Kshs. 500/=. The court chose the custodial sentence. I was told that the appellants had served 9 out of the 30 days they had been imprisoned.

Taking into consideration all the factors herein, I do order that beside the 9 days they had served the appellants shall pay a fine of Kshs. 500/= (Five Hundred) each and in default they complete the remaining 21 days in custody.

Orders accordingly.

Dated, signed and delivered at Kisumu this 27th day of November, 2014.

H.K.CHEMITEI

JUDGE