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JudgmentSamuel Nyongesa VS The Republic5 min read

Samuel Nyongesa VS The Republic

High Court at Nyahururu High Court · · Lilian Mutende


  1. Samuel Nyongesa, the Applicant, and two (2) others were jointly charged with being in possession of specified endangered wildlife trophy without permit or other lawful exemption contrary to Section 92(4) as read with Section 105(1) (b) of the Wildlife Conservation and Management Act 2013.
  2. Having denied the charges they were taken through full trial, convicted and sentenced to pay a fine of Kshs.3,000,000/- each or to serve 7 years imprisonment.
  3. Later on his co-accused applied to have the sentence reviewed pursuant to the provisions of Section 333(2) of the Criminal Procedure Code (CPC), applications that were allowed by Ndung’u J who set aside the sentence of the trial court and substituted it with a fine of Kshs.3,000,000/- or they were to serve 5 years 7 months imprisonment to be computed from the sake of conviction and sentence, 10th May, 2023.
  4. In an undated Notice of Motion filed herein on 21st August, 2023, the Applicant seeks review of the conviction and sentence of 7 years imprisonment.
  5. The application is premised on an affidavit sworn by the Applicant who deposes that he was in custody since the time of arrest.  That he was a first offender who was caught in crime without interest and his nuclear and extended family depends on him.
  6. Mr. Obutu learned Prosecution Counsel did not oppose the application.
  7. Circumstances under which a matter is reviewed are provided for by Section 362 of the Criminal Procedure Code(CPC) which enacts that;

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.

  1. The Applicant was indicted for having contravened Section 92 (4) as read with Section 105(1) (b) of the Wildlife Conservation and Management Act, 2013 which provide thus;

92. (4) Any person without permit or exemption issued under this Act is in possession of any live wildlife species or trophy of any critically endangered or endangered species as specified in the Sixth Schedule or listed under CITES Appendix I, commits an offence and shall be liable upon conviction to a fine of not less than three million shillings or a term of imprisonment of not less than five years or both such fine and imprisonment.

105. (1) The court before which a person is charged for an offence under this Act or any regulations made thereunder may, in addition to any other order—

(b)if it is satisfied that an offence was committed notwithstanding that no person has been convicted of an offence, order that the wildlife trophy, motor vehicle, equipment and appliance, livestock or other thing by means whereof the offence concerned was committed or which was used in the commission of the offence be forfeited to the Service and be disposed of as the court may direct.

  1. In Shadrack Kipchoge Kogo v Republic, Eldoret Criminal Case No. 25 of 2003, the court held that;

“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be inferred.”

  1. In Bernard Kimani Gacheru v Republic [2002] eKLR the Court of Appeal stated that;

“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”

  1. The sentence to be imposed is to be used as an alternative.  It is another available sentence that is why the court has the discretion of imposing both a fine and confinement (imprisonment term).  The learned trial magistrate meted out the sentences in the alternative.  The Applicant is incarcerated following the pronunciation of 7 years imprisonment.
  2. Section 333(2) of the CPC provides;

Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.

Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

  1. The Judiciary Sentencing Policy Guidelines provide thus;

“The proviso to Section 333(2) of the Criminal Procedure Code obligates the court take into account the time already served in custody if the convicted person has been in custody during the trial.  Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed.  In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”

  1. The trial court delivered itself thus;

“The court has noted that the offenders are remorseful with no previous conviction records.  The court will rely on probation reports obtained and filed in court on 08/02/2022 after the offenders pleaded guilty to the offence.  The report against the 1st offender is negative.  The reports regarding the 2nd and 3rd offenders are positive.  The actions by the offenders impacts negatively on the nature and the general environment.  The offence was committed at night and 10 police officers had to lay ambush from 8.30pm upto 4am searching for the offenders.  There is need to deter the offence.  In view of the above I hereby sentence  the offenders to serve 7 years imprisonment each or in the alternative to each pay fine of Kshs.3,000,000/-.  Right of appeal within 14 days.”

  1. It is apparent that the court did not comply with statute.  This is an error that must be corrected.  I therefore call the order of the lower court to this court which I quash and set aside.  In the result I impose a sentence of five (5) years imprisonment which will be effective from the date of arrest, 30/12/2021.  In the alternative he may pay a fine of Kshs.3,000,000/- as provided in law.
  2. It is so ordered.


    Samuel Nyongesa VS The Republic Samuel Nyongesa VS The Republic