[2015] KEHC 5395 (KLR)
The court held that the sentence of seven years imprisonment imposed on the appellant was the minimum provided by section 308(1) of the Penal Code for the offence of preparation to commit a felony. The appellant pleaded guilty and was convicted on his own plea. The trial court considered his mitigation but was bound...
Source-derived case information.
- Citation
- [2015] KEHC 5395 (KLR)
- Parties
- Appellant: Abdallah Mwinyi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 92 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; conviction and sentence upheld
- Judges
- GO Shikwe
- Legal Topics
- Sentencing Guidelines, Preparation to Commit Felony, Minimum Sentence, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdallah Mwinyi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of seven years imprisonment for preparation to commit a felony was harsh or excessive.
- 2 Whether the trial court properly exercised its discretion in sentencing the appellant to the minimum sentence provided by law.
Ratio Decidendi
The court held that the sentence of seven years imprisonment imposed on the appellant was the minimum provided by section 308(1) of the Penal Code for the offence of preparation to commit a felony. The appellant pleaded guilty and was convicted on his own plea. The trial court considered his mitigation but was bound by the statutory minimum. There was no evidence of any exceptional circumstances that would warrant interference with the sentence. Therefore, the sentence could not be said to be harsh or excessive, and the appeal on sentence lacked merit.
Court Disposition
appeal dismissed; conviction and sentence upheld
Orders
- The appeal is dismissed.
- The conviction and sentence of seven years imprisonment is upheld.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 92 OF 2014
(From the Original Conviction and Sentence in Criminal Case No. 1253 of 2013 Chief Magistrate's Court Mombasa – Hon. Odenyo SPM)
ABDALLAH MWINYI.................................................................APPELLANT
VERSUS
REPUBLIC...............................................................................RESPONDENT
JUDGEMENT
The appellant was convicted and sentenced to seven years imprisonment for the offence of preparation to commit a felony contrary to section 308 (1) of the Penal Code.
The particulars being that on the 22nd day of May 2013 at Makadara grounds Mombasa County, not being at his place of abode had with him a knife an article for use in connection with the commission of a felony, namely stealing.
The appellant pleaded guilty to the charges and was convicted on his plea. In his mitigation he told the court that he had a wife and three children and that he was suffering from tuber closis. He was sentenced to seven years.
His appeal is on sentence only.
Section 308 (1) of the penal code provides for a senescent of not less than seven years and not more than 15 years.
It is noted that the appellant was sentenced to seven years imprisonment which is the minimum sentence. He had been charged with a second count for possession of canabis sativa, he also pleaded guilty for the second count and was convicted accordingly but he was discharged on that count.
The sentence cannot be said to be harsh or excessive as it's the minimum.
The appeal lacks merit and it's dismissed. The conviction and sentence is upheld.
Judgment delivered dated and signed this 23rd day of April 2015 in open court in the presence of:
Learned State Prosecutor Mr. Masila
Learned Counsel for the defence Mr. Were
Court administrator Mr. Musundi
M. MUYA
JUDGE