Rex v Kimani (Criminal Appeal No. 237 of 1947) [1947] EACA 69 (1 January 1947)

#### APPELLATE CRIMINAL

### Before NIHILL, C. J., and DE LESTANG, J.

## REX, Respondent (Original Prosecutor)

# KARUGO S/O KIMANI, Appellant (Original Accused)

#### Criminal Appeal No. 237 of 1947

Criminal law-Sentence-Substantial term of imprisonment in addition to heavy fine—Practice.

The appellant was convicted on two charges of fraud contrary to ss. 311 (1) and 285 (1), Penal Code. Both offences arose out of the same transaction. He was sentenced to concurrent terms of two years' imprisonment with hard labour on each count and, in addition, to pay a fine of Sh. 2,000 on the first count with six months' imprisonment with hard labour in default. >

The appellant appealed.

Held $(9-9-47)$ .—(1) That the Court will not interfere with the discretion of a trial Judge on a question of sentence unless it is either grossly excessive or patently inadequate.

(2) That in the absence of special circumstances the Court does not favour the imposition of a substantial fine linked with imprisonment in default in addition to a heavy sentence of imprisonment. Appeal against sentence allowed and fine set aside.

Case referred to: Rex v. Kariama arap Chirono E. A. L. R. Vol V, p. 13.

Nene for the Appellant.

Holland, Crown Counsel, for the Crown.

JUDGMENT.—This is an appeal against sentence only. This Court will not interfere with the discretion of the Magistrate who tried the case unless there are good grounds for coming to the conclusion that the sentence imposed was either grossly excessive or patently inadequate. In the present case the Magistrate imposed the maximum sentence of two years' imprisonment on two counts, the sentences to run concurrently. He also ordered the appellant to pay a fine of Sh. 2,000 on the first count or in default a further six months' imprisonment, the fine, if recovered, to go to one Mohamed Bashir, a victim of the appellant's fraud.

On the second count he ordered the appellant to pay Sh. 2,192/50 as compensation to an Insurance Company, with a further six months in default. Thus the appellant, if unable to pay either sum, would serve a term of three years; imprisonment.

In confirmation this Court confirmed the sentence of imprisonment and fine imposed on the first count, but set aside the order with regard to compensation imposed on the second count.

There is authority for the submission made by the appellant's counsel that this Court does not favour the imposition of a substantial fine linked with imprisonment in default in cases where a convicted person has been given the maximum sentence of imprisonment provided for the offence (Rex v. Kariama arap Chirono, E. A. L. R., Vol. V, p. 13). In the present case the fraud was a bad one and we appreciate the reason which prompted the Magistrate to make his order, but we think that in all the circumstances this was not a case in which a fine with imprisonment in default in addition to a heavy sentence of imprisonment should be imposed. We therefore vary the sentence on the first count to one of imprisonment only. Mohamed Bashir if he has a civil remedy against the appellant can pursue it if he chooses,