REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL REVISION NO. E007 OF 2025
(Coram: Andayi W. F., J.)
CHARLES MATANO WAMBUA……..…………………APPLICANT
VERSUS
REPUBLIC………………………………………………RESPONDENT
RULING
1. This matter is placed before this court for review of sentence. The review of sentence is under Articles 50(2)(q) and 165(6) and (7) of the Constitution of Kenya, sections 362 and 364(1)(b) of the Criminal Procedure Code (Cap. 75) Laws of Kenya, the Probation of Offenders Act (Cap. 64) Laws of Kenya, section 3(1) of the Community Service Orders Act (Cap. 93) Laws of Kenya and pursuant to the Directions by the Honourable the Chief Justice in Her Memo dated 19/8/2024 on decongestion of prisons.
2. The Lower Court file has been placed before this court and I have perused the same.
3. The offender Charles Matano Wambua was jointly charged with seven others on two counts under the Wildlife Conservation and Management Act (Cap. 376) Laws of Kenya. He pleaded guilty while his co-accused pleaded not guilty and are still undergoing trial.
4. The offences for which he was convicted are:
a. Count 1: Entering into a marine protected area without a permit contrary to section 102(1)(a) as read with section 105 of the Act that on 5/11/2024 at around 0200 Hours at Makokowe in Kisite Mpunguti Marine National Park Lunga Lunga Su-County within Kwale County at GPS co-ordinates 37M 0537518 UTM 947916 was found alongside the co-acccused having entered the protected area while aboard a fishing boat named GALFARIA 3 fitted with Yamaha engine (40hp) without a permit from the Director General of KWS.
b. Count 2: Undertaking extractive activity in a marine protected area without a permit contrary to section 102(1)(g) as read with section 105 of the Act that on 5/11/2024 at around 0200 Hours at Makokowe in Kisite Mpunguti Marine National Park within Lunga Lunga Sub-County in Kwale County at GPS co-ordinates 37M 0537518 UTM 947916 was found alongside the co-accused undertaking extractive namely fishing while on board a fishing (dhow) boat named GALFARIA 3 fitted with Yamaha engine (40hp) without a permit from the Director General of Kenya Wildlife Service.
5. The offender pleaded guilty to both counts. He was sentenced to a fine of KShs 200,000/= for each count. The default term in respect of the first count is 3 months imprisonment while for the second count it is 6 months imprisonment. The sentences were ordered to run consecutively meaning he will serve a total of nine months’ imprisonment if the fine is not paid.
6. It is settled law that sentencing is at the discretion of the trial court and an appellate court should be slow to interfere unless there are factors that warrant such interference. This position was restated by the Court of Appeal in the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR as follows:
“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.”
7. The punishment for each of the offences for which the offender was convicted is a fine of not less than two hundred thousand shillings or to imprisonment of not less than two years or to both such fine and imprisonment.
8. The learned trial magistrate therefore proceeded correctly in accordance with the law in imposing the fine. The default terms of imprisonment are also in line with the provisions of section 28 of the Penal Code (Cap. 63) Laws of Kenya.
9. The offences carry minimum sentences meaning that the court is not permitted to impose a sentence less than the one prescribed under the law.
10. Consequently, this case is not suitable for a sentence review.
11. The file is closed.
12. It is so ordered.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 12th day of May 2025.
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect.
ANDAYI W. F.
JUDGE
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL REVISION NO. E007 OF 2025
(Coram: Andayi W. F., J.)
CHARLES MATANO WAMBUA……..…………………APPLICANT
VERSUS
REPUBLIC………………………………………………RESPONDENT
RULING
1. This matter is placed before this court for review of sentence. The review of sentence is under Articles 50(2)(q) and 165(6) and (7) of the Constitution of Kenya, sections 362 and 364(1)(b) of the Criminal Procedure Code (Cap. 75) Laws of Kenya, the Probation of Offenders Act (Cap. 64) Laws of Kenya, section 3(1) of the Community Service Orders Act (Cap. 93) Laws of Kenya and pursuant to the Directions by the Honourable the Chief Justice in Her Memo dated 19/8/2024 on decongestion of prisons.
2. The Lower Court file has been placed before this court and I have perused the same.
3. The offender Charles Matano Wambua was jointly charged with seven others on two counts under the Wildlife Conservation and Management Act (Cap. 376) Laws of Kenya. He pleaded guilty while his co-accused pleaded not guilty and are still undergoing trial.
4. The offences for which he was convicted are:
a. Count 1: Entering into a marine protected area without a permit contrary to section 102(1)(a) as read with section 105 of the Act that on 5/11/2024 at around 0200 Hours at Makokowe in Kisite Mpunguti Marine National Park Lunga Lunga Su-County within Kwale County at GPS co-ordinates 37M 0537518 UTM 947916 was found alongside the co-acccused having entered the protected area while aboard a fishing boat named GALFARIA 3 fitted with Yamaha engine (40hp) without a permit from the Director General of KWS.
b. Count 2: Undertaking extractive activity in a marine protected area without a permit contrary to section 102(1)(g) as read with section 105 of the Act that on 5/11/2024 at around 0200 Hours at Makokowe in Kisite Mpunguti Marine National Park within Lunga Lunga Sub-County in Kwale County at GPS co-ordinates 37M 0537518 UTM 947916 was found alongside the co-accused undertaking extractive namely fishing while on board a fishing (dhow) boat named GALFARIA 3 fitted with Yamaha engine (40hp) without a permit from the Director General of Kenya Wildlife Service.
5. The offender pleaded guilty to both counts. He was sentenced to a fine of KShs 200,000/= for each count. The default term in respect of the first count is 3 months imprisonment while for the second count it is 6 months imprisonment. The sentences were ordered to run consecutively meaning he will serve a total of nine months’ imprisonment if the fine is not paid.
6. It is settled law that sentencing is at the discretion of the trial court and an appellate court should be slow to interfere unless there are factors that warrant such interference. This position was restated by the Court of Appeal in the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR as follows:
“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.”
7. The punishment for each of the offences for which the offender was convicted is a fine of not less than two hundred thousand shillings or to imprisonment of not less than two years or to both such fine and imprisonment.
8. The learned trial magistrate therefore proceeded correctly in accordance with the law in imposing the fine. The default terms of imprisonment are also in line with the provisions of section 28 of the Penal Code (Cap. 63) Laws of Kenya.
9. The offences carry minimum sentences meaning that the court is not permitted to impose a sentence less than the one prescribed under the law.
10. Consequently, this case is not suitable for a sentence review.
11. The file is closed.
12. It is so ordered.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 12th day of May 2025.
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect.
ANDAYI W. F.
JUDGE