Mwaivo v Republic [2022] KEHC 16259 (KLR)

Mwaivo v Republic (Criminal Revision 17 of 2020) [2022] KEHC 16259 (KLR) (8 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16259 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Revision 17 of 2020

DO Chepkwony, J

December 8, 2022

Between

Allen Mwaivo

Appellant

and

Republic

Respondent

Judgment

1. The Applicant, Allen Mwaivo, has vide a letter dated 27th July, 2020 and filed on 24th August, 2020 invoked this court’s supervisory jurisdiction seeking for a review of the sentence and orders issued on 21st February, 2020 by the Principal Magistrate, Hon. M. S. Khapoya in Taveta Criminal Case No.405 of 2017, Republic v Allen Mwaivo & Another .

2. According to the Applicant, he was sentenced to serve five (5) years imprisonment for the offence of being in Possession of Wildlife Trophy contrary to section 95 of the Wildlife Conservation and Management Act, 2013. The Applicant has contended that the custodial sentence of five(5) years he was handed is harsh, severe and manifestly excessive. He has pleaded that he is the sole bread winner of his family as a first born. He has also mitigated that he is a first offender and remorseful for the offence.

3. The Respondents, through their counsel Mr. J. K. Chirchir filed written submissions which he intimated to court that they were relying on in their entirety. He opposed the application on the ground that the sentence imposed against the Applicant was neither harsh nor excessive since it was the minimum sentence provided for under section 95 of the Wildlife Conservation and Management Act, 2013, thus legal. That in the circumstances, the trial Magistrate’s hands were tied and could not have meted a lower sentence than that prescribed under section 95 of the said Act.

4. For determination herein, is whether the application for review of sentence by the Applicant is merited. I have carefully read through the application, the grounds upon which the same is based, the oral and written submissions by the parties together with the proceedings of the trial court and considered the relevant law (both statute and case law).

5. The revision jurisdictional power of a court is provided for under section 362 as read with section 364 of the Criminal Procedure Code. Section 362 which states:-“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.Section 364 states that:-“(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—a.in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;b.in the case of any other order other than an order of acquittal, alter or reverse the order.(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.

6. The Applicant has sought to have the sentence meted against him on 21st February, 2020 revised. It is important to note that the Applicant jointly with another were jointly charged with two counts. In Count I, they were charged with the offence of being in Possession of a Wildlife Trophy contrary to section 95 of the Wildlife Conservation and Management Act, 2013.

7. In Count II, they were charged with the offence of dealing in Wildlife Trophy contrary to section 84(1) as read with section 92 of the Wildlife Conservation and Management Act, 2013.

8. The matter proceeded for trial whereby the accused person was found guilty, convicted and sentenced to serve five(5) years imprisonment for the offence of being in Possession of a Wildlife Trophy, contrary to section 95 of the Wildlife Conservation and Management Act, 2012 in Count I on 21st February. 2020.

9. The accused persons were acquitted in respect of the offence in Count II. The offence of Possession of Wildlife Trophies is provided for under section 95 of the Wildlife Conservation and Management Act 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 issued 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 One Million Shillings or imprisonment for a term of not less than five (5) years or to both such imprisonment and fine”.

10. From the above provision, it is clear that the penalty provided for the offence of being in Possession of Wildlife Trophies is a fine of not less than One (1) Million Shillings or imprisonment for a term of not less than five (5) years or to both such imprisonment and fine. It is also of mandatory nature, hence the trial Magistrate’s hands were tied and hence imposed sentence that was within his powers and commensurate to the offence.

11. That said, the only reprieve for the Applicant would be to consider whether the trial Magistrate in passing the sentence against the Applicant took into account the period that he had been in remand custody prior to his sentence and revise the same. Having read through the proceedings before the trial, I noted that this was not taken into consideration as required by section 333(2) of theCriminal Procedure Act.

12. In conclusion, although the sentence of five (5) years that was meted against the Appellant is upheld, the trial court ought to have taken into consideration the period spent in remand and in this court’s view,the period should run from 16th November, 2017 when the Applicant was first arrested and remanded in custody until his trial ended. The Applicant was in custody for a period of three (3) years, three months at the time he was sentenced. He should therefore serve another period of two (2) years, ten (10) months, from the date when his sentence was meted.

13. I therefore invoke the revisionary powers of this court as provided for by section 362 as read with section 364 of the Criminal Procedure Code and order that the sentence of five (5) years meted against the Applicant be and is hereby revised to run from the 16th November, 2017, when he was arrested and remanded in custody throughout his trial.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 8THDAY OF DECEMBER, 2022. D. O. CHEPKWONYJUDGEIn the presence of:Appellant in personMr. Sirima counsel for the StateCourt Assistant - Gitonga