Kenney Yego & Ben Mboga v Republic [2016] KEHC 5824 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

REVISION NO. 4 OF 2016

(Being a Revision from the conviction and sentence of the Kitale Senior Resident Magistrate V.O. Adet delivered on  1st March 2016 in Criminal Case No. 1010 of 2016).

KENNEY YEGO  }

BEN MBOGA  }..........................................APPLICANTS

VERSUS

REPUBLIC …...............................................RESPONDENT

RULING ON REVISION

The applicants, KENNY YEGO and BEN MBOGA  have applied for an order of revision pursuant to the provisions of section 362 and 364 of the Criminal Procedure Code.

The applicants were  charged with the offence of  Removing Forest  produce without a permit contrary to Section 52(1) (a) as read with section 52(2) of the Forest Amendment Act, No. 7 of 2005

The particulars of the offence are that on the 29th day of February 2016 along Kapsait/Kapcherop road in Elgeyo Marakwet County, jointly were found removing 600 pieces of rosewood  timbers and 40 pieces of cedar timbers all valued at Kshs 200,000/- in a Motor Vehicle Registration Number KCF 408T Mitsubishi Lorry without a permit from Director of Forest Service Elgeyo Marakwet County.

The applicants pleaded guilty and were  fined Kshs 50,000/- each in default three (3) months imprisonment.  The trial court also made orders for the forfeiture of the timber.

The applicants  were aggrieved by the  forfeiture order.  The grounds for the  application for revision  are that the forfeiture orders  were made in chambers in the absence of the accused  when the court had already pronounced judgment  and  was Functus officio.  It is further stated that Sections 52(i) and 55(2) of the Forest Amendment Act No. 7 of 2005  provides for the penalty of the offence as  a fine or imprisonment and not forfeiture.

I have perused the record of the Lower court for the purpose of satisfying myself as to the  legality, correctness or propriety of the same.  I have not found any  irregularities in the proceedings.  The Lower Court's  Coram for the date of plea on 1/3/2016 reflects the presence of the accused.  The  court  record has no reflection of any chamber proceedings.

Section  55(1) (c) of the  aforestated Forest  Act provides for the forfeiture of the forest produce.  The forfeiture orders imposed by the trial court are therefore within  the law.

It is observed that the default sentence is irregular.  Section 28 (2) of the Penal Code provides for a default sentence of six months for the non payment of a fine of Kshs 50,000/- .  I however note that the fine has already been paid.

The application has no merit and is dismissed.

________________________

B. THURANIRA JADEN

JUDGE

Dated and delivered this 23rd day of march 2016.

________________________

B. THURANIRA JADEN

JUDGE