1. The appellant Musyoka Mumina is charged with:
Count I: Entering a protected area without permit contrary to section 102(1) (a) of the Wildlife Conservation and Management Act 2013. The particulars are that on the 29th day of November 2022 at Kikunduku area within Chyulu hills national park in Kibwezi sub-county within Makueni County was found having entered into the said National park without authority from Kenya Wildlife Service. Count II: Undertaking related activity in wildlife protected area contrary to section 102(h) of the Wildlife Conservation and Management Act 2013. The particulars are that on the 29th day of November 2022 at Kikunduku area within Chyulu hills national park in Kibwezi sub-county within Makueni county was found having carried out activity namely harvesting khat (miraa) from the said National park without authority from Kenya Wildlife Service Director General.
2. On 8/12/2022 he was sentenced to pay fine of Kshs.200,000/= in default two years imprisonment on each count . The sentences were to run consecutively.
3. He filed this appeal dated 14/12/2022 on grounds inter alia;
- The sentence passed or meted against the appellant was manifestly draconian, excessively punitive and unfairly oppressive considering the facts and circumstances of the alleged offence.
- That this court to reduce the conviction or grant a non-custodial sentence or slash the conviction or whichever the court may deem fit.
4. On 8/6/2023 the prosecution in their submissions by Lucas K. Tanui Assistant director Public prosecutions conceded the appeal stating
The appellant was sentenced to a fine of kshs.200,000/= and in default to serve 2 years imprisonment of both counts and the sentence was consecutively.
a) That under section 102(1) a person convicted is liable to a fine of Kshs.200,000/= or imprisonment of not less than 2 years, therefore, the sentence meted on the appellant was very lenient sentence.
b) The court stated that the two sentences were to run consecutively however, since the two offences were committed under similar circumstances and transaction, the court ought to have ordered the sentences to run concurrently.
The prosecution conceded the appeal on sentence.
6. In the circumstances the appeal is allowed to that extent.
7. The appeal on sentence is allowed and sentence reviewed to read accused to pay fine of Kshs.200,000/= in default two years imprisonment on each count to run concurrently with effect from the date he was remanded in custody.
8. Orders accordingly
Dated, Signed and Delivered via CTS this 15th day of November2024
Mumbua T Matheka
Judge