[2013] KEHC 1773 (KLR)
The trial magistrate erred by relying on an unproven allegation of a previous conviction when imposing the maximum sentence of 10 years imprisonment. The prosecution failed to provide the required proof of a previous conviction, such as a certificate from the Central Bureau of Criminal Records or sufficient case...
Source-derived case information.
- Citation
- [2013] KEHC 1773 (KLR)
- Parties
- Appellant: Abdi Ahmed; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 87a of 2010
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- appeal allowed in part; sentence varied
- Judges
- JW Lessit
- Legal Topics
- Sentencing Principles, Firearms Offences, Appeal Against Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Abdi Ahmed
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of 10 years imprisonment imposed on the appellant was proper in law and fact.
- 2 Whether the trial court properly considered the appellant's previous conviction in sentencing.
Ratio Decidendi
The trial magistrate erred by relying on an unproven allegation of a previous conviction when imposing the maximum sentence of 10 years imprisonment. The prosecution failed to provide the required proof of a previous conviction, such as a certificate from the Central Bureau of Criminal Records or sufficient case details. As a result, the sentence was influenced by an improper consideration. The appellate court found that, in the absence of proof of a previous conviction, the sentence should be reviewed. The court substituted the 10-year sentence with an 8-year term, which is within the statutory range and not influenced by unproven aggravating factors.
Court Disposition
appeal allowed in part; sentence varied
Orders
- The sentence of 10 years imprisonment is set aside.
- The appellant is sentenced to 8 years imprisonment from the date of sentence in the lower court.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL APPEAL NO. 87A OF 2010
LESIIT, J
ABDI AHMED………………………………….…….….APPELLANT
V E R S U S
REPUBLIC....................................................................RESPONDENT
Being an Appeal from the Pms court Isiolo Criminal Case No. 1932 of 2006 from the judgment and sentence of M. MAUNDU PM delivered on the 14TH April, 2010. )
JUDGEMENT
The Appellant was found guilty and convicted of one count of Being in Possession of a Firearm without a firearm certificate contrary to section 4(2)(a) of the Firearms Act. He was sentenced to an imprisonment term of 10 years. Being aggrieved by the conviction and sentence he filed this appeal.
In his address before the count the Appellant urged that he was abandoning his appeal against the conviction and was only pursuing his appeal against sentence. He submitted that he had a metal in his left leg and that he suffered from ulcers, and that since his incarceration his health had deteriorated. He urged that he had gone through Training and would be capable of fending for himself from the skills he had learned. He also said that had gone through Counseling and Guidance and would be of better use to the society.
The state was represented by Mr. Moses Mungai who urged the court to note that the maximum sentence for the offence is 10 years imprisonment.
I have carefully considered this Appeal. The Appellant is only challenging the sentence of 10 years imprisonment. I noted from the record that the prosecution indicated that the Appellant had one previous conviction for which he was serving sentence. The Appellant in response admitted that he was serving a sentence for a similar offence.
With due respect to the learned magistrate the way to receive a previous record of an accused person was not followed. In such a case the prosecution is required to adduce proof of previous conviction by producing a Certificate from the Central Bureau of Criminal Records as proof of the conviction.In the bare minimum the prosecution could provide the case number and the court in which the accused person was convicted and if possible cause it to be availed to the court. In either case the court is expected to put the record to the accused person and require him to admit or deny the same. In the instant case neither a Certificate of previous records nor a conviction nor the court and criminal case number in which the Appellant was convicted were given. The prosecution did not therefore establish that the Appellant was ever convicted of any offence prior to the one on record.
I note from the record that the learned trial magistrate must have been influenced by the allegation that the Appellant had a similar previous conviction consequently he imposed a sentence of 10 years imprisonment under Section 4(3) (a) of the Fire Arm’s Act a persons convicted of an offence under section 4(2) of the Act is liable to imprisonment for a period not less than seven years and not more than 15 years imprisonment. The learned trial magistrate misdirected himself that the Appellant had a previous conviction. In the circumstances the Appellant Appeal against sentence is allowed.
I will allow the Appellants Appeal and set aside the sentence of 10 years imprisonment and in substitution thereof sentence the Appellant to an imprisonment term of 8 years from the date of sentence in the lower court.
DATED SIGNED AND DELIVERED AT MERU THIS 23rd DAY OF OCTOBER, 2013.
J. LESIIT
JUDGE