Josiah Miriti v Republic [2017] KEHC 713 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT CHUKA

CRIMINAL REVISION NO. 9 OF 2017

(From original conviction and sentence in

CiminalCaseNo. 864of 2014 of the Chuka

Magistrate'sCourt at Chuka.)

JOSIAH MIRITI................................APPLICANT

VERSUS

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

R U L I N G

1. JOSIAH MIRITI the applicant herein along two other persons were  charged with being in possession of Wildlife Trophy contrary to Section 95  of the  Wildlife Conservation and Management Act 2013 vide Chuka  Senior Principal Magistrate's Court No. 864 of 2014.  The applicant and  co-accused denied the charge but upon trial the applicant was found guilty  and convicted. He was sentenced to serve five years imprisonment or pay a  fine of Kshs.2 million.

2. The applicant has now moved this court for revision of his sentence under  the provisions of Sections 362 and364 of the Criminal Procedure Code.  The grounds upon which the application has been brought are as follows  namely:-

(i) That he is a sole bread winner.

(ii) That he is old and may not survive the sentence

(iii) That he is remorseful

(iv) That he has been in custody since 2014 and that he never got     a chance to mitigate.

3. This court did call for the lower court file and upon perusal established that  indeed the applicant was found guilty of the offence under Section 95 of the  Wildlife Conservation and Management Act No. 47of2013. The  provision provide as follows:-

" Any person who keeps or is found in possession of a wildlife trophy or deals in a wildlife trophy or manufactures any item from a trophy without a permit issue under this Act or exempted in accordance with any other provision of this Act commits an offence and shall be liable upon conviction to a fine of not less than onemillion shillings or imprisonment of a term of not less than 5 years    or to both such imprisonment and fine."

4. The trial court upon finding the applicant guilty really had no option but to  impose a sentence prescribed by law and where a statute prescribes  a  minimum sentence, the court's hands are tied because a court cannot pass a  sentence below the prescribed limit. The propriety, legality and correctness  of the sentence passed by the trial court in this instance cannot be challenged  because the same was proper in accordance with the law as cited above.

5. I have also noted from the proceedings that the applicant herein was give a  chance to mitigate and the only mitigation factor raised was that he had been  in custody for two years. The trial court duly considered  the mitigation  raised but again as I have said the trial court's hands were tied by the  minimum sentence prescribed by law. I have perused through the  proceedings and the same are regular and I find no basis to interfere with the  sentence passed.

In the premises the application for revision of sentence is not merited. The  same is disallowed for the above reasons.

Dated and delivered at Chuka this 29th day of November, 2017.

R.K. LIMO

J UDGE

29/11/2017

Ruling signed, dated and delivered in open court in the presence of the Applicant in person and Machirah for state.

R.K. LIMO

JUDGE

29/11/2017