Musee Musembi v Republic [2018] KEHC 2408 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CRIMINAL REVISION NO. 245 OF 2018

MUSEE MUSEMBI............................................APPLICANT

VERSUS

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

R U L I N G

1. Musee Musembi, the Applicant was arraigned before court having been charged with the offence of Transporting Forest produce without a permit Contrary to Section 52 (1) of the Forest Act. He pleaded guilty and was convicted on his own plea of guilty whereby he was sentenced to serve twelve (12) months imprisonment.

2. By a letter dated the 17th May 2018, Messrs J.K. Mwalimuand Company Advocates seek Revision of the sentence meted out which is stated to be harsh and excessive.

3. This is a case where the applicant admitted the charge at the outset. Section 348 of the Criminal Procedure Code provides thus;

“No appeal shall be allowed in the case of an accused person who has pleaded

guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence”

4. The plea as recorded is unequivocal.  It is for that reason that I  am only called upon to examine the sentence imposed.

5. Having reconsidered the charge as framed I must interrogate whether the charge as framed should have resulted into a conviction(See Laurent Mpinga Vs. R. (1983) TLR 166).

6. The Forest Conservation and Management Act, 2016 (Act)came into force in the year 2011. The date of assent was the 31stday of August, 2016, while the date of commencement was the 31st March, 2017.

Section 76 of the Act provides as follows;

“The Forest Act, 2005 and Timber Act are hereby repealed”.

7. The Forest Act, 2005, Chapter 385 of the Laws of Kenya commenced on 1st February, 2007, and it is the Act No. 7 of 2005, (L.N. 19/2007). This is the Act that was repealed by the Forest Conservation andManagement Act, 2016.

8. The consequence of the foregoing is that the Applicant/offender was charged with an offence not known in law, as the charge was fatally defective.

9. In the premises, I quash the conviction and set aside the sentence meted out and any other consequential orders.The Applicant /offender shall be set free forthwith unless otherwise lawfully held.

10. It is so ordered.

Dated, Signedand delivered in Kitui this 5th day of October, 2018.

L.N. MUTENDE

JUDGE