High Court 3783 of 2012

Canter without a permit from the Director of Forest Service.” And the particulars of count II read as follows:“Laban Manane, Daniel Nyariki and Evans Obudo on the 15th day of July, 2011 along Songor - Kopere road were found jointly being in possession of 135 bags of charcoal valued at Kshs. 108,000/- without a permit from the Director of Forest Service.” The record shows that the following facts were narrated by the prosecution:“On 18th July, 2011 around 12 midnight Forest Guards from Nandi South Zonal forest office under the command of Sergeant Limo who was accompanied by Corporal Lagat and F.G. Naibei were on patrol along Songor - Kapere road. They came across a motor vehicle registration number KAE 825 P Mitsubishi lorry. They stopped the same and upon conducting a search, they confirmed that it was transporting 135 bags of charcoal. They required from the three occupant all of who are present in court, if they had a permit from Director Forest Services. None had a permit to transport the same. The officers arrested all the three suspects and ordered the driver to drive towards Nandi Hills Police Station. At the entrance of Nandi Hills Police Station,

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the said lorry landed in a ditch prompting it to be towed to the station yard later. The Deputy Forest guard in the presence of the accused persons did a count of the sacks. They all established it was 135 bags of charcoal. The three then were escorted to the court for plea. I produce the lorry as exhibit (PEX.1). I also produce the 135 bags of charcoal as exhibit (P.EX2).” After the appellant admitted those facts he said as follows in mitigation:“I admit the charges. I was with the charcoal. I was an employee transporting for my boss. I have a wife and 2 children. I had not discussed the permit with 2nd accused. I am not the owner of the charcoal. I know I had no permit. I am the one who obtained transport.” At the hearing of the appeal, the appellant appeared in person and relied on his grounds of appeal. Mr. Chirchir for the Republic conceded the appeal on the grounds that the plea was not unequivocal and further that the appellant was treated differently from his co-accused in sentencing. Having perused, re-considered and re-evaluated the proceedings which took place before the lower court, I am unable to detect any defect in the manner the appellant’s plea was taken. The Learned trial magistrate strictly followed the procedure spelt out by the Court of Appeal in Aden -Vs- Republic [1973] E.A. 445. When called upon to mitigate, the appellant stated what I have set out above. It is plain that even in mitigation the appellant admitted transporting the charcoal without a permit. The fact that he denied ownership of the charcoal did not negate his plea. He clearly admitted transporting and being in possession of the charcoal without a permit from the Director of Forest Service. Like the learned trial magistrate, I am satisfied that the appellant’s plea of guilty was clearly unequivocal. However in my judgment, the offence disclosed by the facts given by the prosecution was that transporting forest produce i.e. the 135 bags of charcoal. The second count of being in possession of the same bags of charcoal should have been charged in the alternative. In the premises conviction could only be in respect of one of the counts and not both. That being my view of the matter, the conviction of the appellant on the second count was not proper and the purported admission of the appellant was inconsequential. I quash the conviction of the appellant on the second count but dismiss his appeal against conviction on the first count. With regard to sentence, I agree with the learned Senior State Counsel that there was no basis for treating the appellant more severely than his co-accused who had denied the charges and were fully tried. Indeed the fact that the appellant pleaded guilty should have been favourably considered when

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determining the appropriate sentence to be meted out to him but no consideration seems to have been given to that fact. The appellant’s co-accused, Daniel Nyariki, was fined Kshs. 20,000/- on the same count. Given the mitigating circumstances stated by the appellant and the fact that he pleaded guilty at the first opportunity, he did not in my judgment deserve a more severe punishment than his co-accused. In the premises, I am entitled to interfere. I allow the appeal against sentence. The fines of Kshs. 108,000/on each count imposed upon the appellant by the lower court are hereby set aside; I substitute therefore a fine of Kshs. 20,000/- on count one (1). In default the appellant to serve six (6) months imprisonment. DATED AND DELIVERED AT ELDORET THIS 14TH DAY OF JUNE, 2012 F. AZANGALALA JUDGE Read in the presence of:The appellant and Mr. Chirchir for the State. F. AZANGALALA JUDGE 14TH JUNE, 2012

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