Jurgen Reiners v Republic [2018] KEHC 4385 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL APPEAL NO. 198 OF 2015

JURGEN REINERS............................................. APPELLANT

=VERSUS=

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

(An Appeal from the conviction and sentence of Hon. S. Shitubi (CM) on 17/11/2015 at Mombasa Law Courts)

JUDGMENT

1. The Appellant pleaded guilty to a charge of engaging in business without being authorized by a work permit contrary To Section 53 (1) (m) as read with Section 53 (2) of the Kenya citizenship and Immigration Department, 2011.

2. The particulars of the charge were that on 16/11/2015 at the Edge and Restaurant in Mtwapa within the Republic of Kenya, the Appellant beingGerman National, was found unlawfully engaging in the business ofrunning of a Restaurant without being authorized by a work permit.

3. The Appellant has filed this Appeal on the following grounds:-

(i) That the Appellant did not understand the charge

(ii) That the evidence was not sufficient to make a prima facie case against the Appellant

(iii) That the Appellant was not accorded a fair hearing or an interpreter before being convicted.

(iv) That the sentence imposed upon the Appellant a fine of Ksh. 400,000 or two years imprisonment and deportation was harsh and excessive.

4. The Appellant filed written submissions as follows;

(i) That the Appellant, being a Germany National who was visiting Kenya as a tourist did not understand the charge and he was not given an interpreter or an Advocate and further that the court hurriedly proceeded to convict the Appellant and immediately sentenced him occasioning miscarriage of injustice

(ii) That the plea was not unequivocal as the Appellant did not understand the English language

(iii) That the Appellant was lawfully in the country and all his documents were proper at the time of arrest.

(iv) That the sentence of a fine of Ksh. 400,000, in default, two (2) years jail and an order for repatriation to Germany are excessive.

(v) Further the appellant submitted that the sentence of repatriating him to Germany is unfounded and too harsh and it amounts to double jeopardy as the appellant was legally in the country.

5. Opposing the Appeal, the Respondent submitted as follows:

(i) That the plea herein is unequivocal

(ii) That the sentence is lawful

6. I have considered the rival submissions in this Appeal. My findings are as follows;

(i) I find that it is not clear what language the proceedings wereconducted. The Coram shows;

Interpretation: English/Kiswahili

(ii) The Appellant who is a Germany National submitted throughhis Advocate that he does not understand English well. It wasthe duty of the court to organize for an interpreter and toensure that the Appellant understood the charge he was facing.

(iii) I also find that the facts as given to the court by the prosecutor do not disclose an offence. This is what the trial court captured;

“Prosecutor: Facts are that on 16/11/2015 Immigration Officer Working on a tip off visited the Edge Pub&Restaurant in Mtwapa. They paused as customers and offered refreshments. It was brought/served item with the soft drinks - soda.

They thereafter engaged in a conversation if he had a work ticket.

They requested to see his passport. He produced a German passport. No (78511yj1. Upon perusing it, the officers found that the accused person came to Kenya through Moi International Airport on 6/7/2015.

He had a 3 months holding visa. The same was later extended for another three months from 6/10/2015 to be valid to 5/1/2016. On perusal the officers established that he was on holiday. A receipt of cash sales receipts numbered was captured from the passport. The accused should be on holiday.

He has no work permit. He was arrested and taken to Central Police Station".

(iv) From the facts, this is not clear that it is the Appellant who served the refreshments. It is stated that:

“It was brought/served item with the soft drinks – soda”

I find that the facts are not clear. Is it the Appellant who served the drinks or it was someone else?

(v) I also agree that the punishment meted was excessive. The trial court ordered the Appellant to pay a fine of 400,000 or two (2) years jail and in addition to be repatriated yet he had a valid 3 months visa to be in the country.

(vi) I find that this Appeal has merit and I accordingly allow it and set aside both the conviction and sentence.

(vii) I further order that the Appellant's passport be released to him forthwith and his surety in the bail pending Appeal be discharged.

Dated, Signed and Delivered in Mombasa this 20th day of March 2018.

ASENATH ONGERI

JUDGE