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Rex v Kimani (Criminal Appeal No. 237 of 1947) [1947] EACA 69 (1 January 1947)
- Citation
- [1947] EACA 69
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- De Lestang J, Nihill, C.J
- Case number
- Criminal Appeal No. 237 of 1947
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- De Lestang J, Nihill, C.J
- Case number
- Criminal Appeal No. 237 of 1947
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that while the offences were serious, the imposition of both the maximum term of imprisonment and a substantial fine with imprisonment in default was not justified in the absence of special circumstances. The established judicial practice disfavors such cumulative punishment for offences arising out of the same transaction. The sentence was therefore varied to imprisonment only, and the fine was set aside. The victim may pursue civil remedies if desired.
Court disposition
appeal_allowed_in_part
Orders
- The sentence on the first count is varied to imprisonment only; the fine is set aside.
- The order for compensation on the second count is set aside.
02
Material facts
Parties
Karugo s/o Kimani
Appellant Counsel: NeneRex
Respondent Counsel: HollandAmounts and remedies
- Fine Imposed on First Count: KES 2,000
- Compensation Ordered on Second Count: KES 2,192.5
03
Procedural history
Posture
Criminal Appeal / Appeal Against Sentence
04
Questions and positions
Legal issues
- 01
Whether the sentence imposed by the trial Magistrate was grossly excessive or patently inadequate.
- 02
Whether it is proper to impose a substantial fine with imprisonment in default in addition to a heavy sentence of imprisonment for offences arising out of the same transaction.
Party arguments
- Applicant
- Counsel for the appellant argued that the imposition of both the maximum term of imprisonment and a substantial fine with imprisonment in default was excessive and contrary to established judicial practice. He relied on authority indicating that such sentencing is not favoured unless special circumstances exist.
- Respondent
- Crown Counsel submitted that the offences were serious and justified the sentences imposed, including the fine and compensation orders, given the gravity of the fraud and the impact on the victims.
05
Court’s reasoning
Legal principles
- 01
General sentencing practice
The appellate court will not interfere with the discretion of a trial judge on sentence unless it is grossly excessive or patently inadequate.
- 02
Rex v. Kariama arap Chirono, E.A.L.R. Vol V, p. 13
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.
06
Ratio, limits and disposition
Ratio decidendi
The court held that while the offences were serious, the imposition of both the maximum term of imprisonment and a substantial fine with imprisonment in default was not justified in the absence of special circumstances. The established judicial practice disfavors such cumulative punishment for offences arising out of the same transaction. The sentence was therefore varied to imprisonment only, and the fine was set aside. The victim may pursue civil remedies if desired.
Obiter and limits
- The court appreciates the reasons which prompted the Magistrate to make the order but finds that this was not a case warranting both imprisonment and a substantial fine with imprisonment in default.
- Mohamed Bashir, if he has a civil remedy against the appellant, can pursue it if he chooses.
Court disposition
appeal_allowed_in_part
- The sentence on the first count is varied to imprisonment only; the fine is set aside.
- The order for compensation on the second count is set aside.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
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,
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