[2003] KEHC 829 (KLR)
The appeal of Alex Mwangi Njau was allowed because the State conceded and there was no reason to differ, resulting in his conviction being quashed and sentence set aside. For Kamande Gachie Kiembe, the court found that the evidence was sufficient to sustain the conviction, as he was arrested at the scene with...
Source-derived case information.
- Citation
- [2003] KEHC 829 (KLR)
- Parties
- Appellant: Alex Mwangi Njau; Appellant: Kamande Gachie Kiembe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 141 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal of Alex Mwangi Njau allowed; conviction quashed and sentence set aside. Appeal of Kamande Gachie Kiembe dismissed; conviction upheld and sentence enhanced to seven years imprisonment.
- Legal Topics
- Sentencing Principles, Mandatory Minimum Sentence, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Mwangi Njau
Appellant
Kamande Gachie Kiembe
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of Alex Mwangi Njau was safe and should be upheld or quashed.
- 2 Whether the conviction of Kamande Gachie Kiembe was supported by sufficient evidence.
- 3 Whether the sentence imposed on Kamande Gachie Kiembe was lawful under the Penal Code.
Ratio Decidendi
The appeal of Alex Mwangi Njau was allowed because the State conceded and there was no reason to differ, resulting in his conviction being quashed and sentence set aside. For Kamande Gachie Kiembe, the court found that the evidence was sufficient to sustain the conviction, as he was arrested at the scene with incriminating items and there was no issue of mistaken identity. However, the sentence imposed by the trial magistrate was unlawful as it did not meet the mandatory minimum of seven years imprisonment prescribed by the Penal Code after the 1993 amendment. The court therefore set aside the original sentence and substituted it with the lawful minimum sentence of seven years...
Court Disposition
Appeal of Alex Mwangi Njau allowed; conviction quashed and sentence set aside. Appeal of Kamande Gachie Kiembe dismissed; conviction upheld and sentence enhanced to seven years imprisonment.
Orders
- Alex Mwangi Njau to be set at liberty forthwith unless otherwise lawfully detained.
- Conviction of Kamande Gachie Kiembe upheld.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
HIGH COURT CRIMINAL APPEAL NO. 141 OF 2002
ALEX MWANGI NJAU……………….………………….APPELLANT
VERSUS
REPUBLIC……………………………………………………RESPONDENT
AND
HIGH COURT CRIMINAL APPEAL NO. 144 OF 2002
(ORG. D.M.’S KIGUMO CRIMINAL CASE NO. 1353/01)
KAMANDE GACHIE KIEMBE………………………….APPELLANT
VERSUS
REPUBLIC……………………………………………………RESPONDENT
JUDGMENT
The learned State Counsel Mr. Obuo concedes the appeal No. 141/02 by ALEX MWANGI NJAU and I find no reason to take a different line.
That being the position, the appeal of Alex Mwangi Njau is hereby allowed. His conviction quashed and the sentence set aside.
He be set at liberty forthwith unless lawfully detained in some other cause.
With regard to the Appellant inCriminal Appeal No. 144/02 KAMANDE GACHIE KIEMBE, there was sufficient evidence against him to sustain the conviction. He was arrested on the spot around midnight and never disappeared from custody until charged, prosecuted, convicted and sentenced. A simi stacked into his pair of long trousers was recovered from him. He had a torch recovered from him. Three arrows recovered from the place where the arresting police officers found the Appellant and other people who managed to escape. Nearby there was a spike placed in the middle of the road.
Having been arrested in those circumstances, there was no problem with regard to identification of this Appellant as there was no need for an identification parade.
Kamande Gachie Kiembe was therefore properly convicted and his appeal against conviction is hereby dismissed.
As to the sentence of four years imprisonment with hard labour plus three strokes of the cane, it would appear to me that the learned trial magistrate and the learned State Counsel, Mr. Obuo, are not up to date.
The two appear to be using Section 308(1) of the Penal Code as it was after the amendment in Act No. 22 of 1987 and before the amendment in Act No. 11 of 1993. While the former amendment removed the then existing mandatory minimum sentence, the latter amendment restored the mandatory minimum sentence putting it at seven years imprisonment. The maximum sentence was put at fifteen years imprisonment.
It follows that when on 7th January, 2002 the learned trial magistrate sentenced the Appellant to four years imprisonment and during the hearing of this appeal on 22nd October, 2003 the learned State Counsel was telling me that I had the option to reduce that sentence, the sentences the two had in mind were unlawful.
The trial magistrate having imposed an unlawful sentence of four years imprisonment with hard labour plus three strokes of the cane, I am entitled to alter that sentence to impose a lawful sentence and since the lawful sentence imposes a mandatory minimum sentence of seven years imprisonment, I will not be altering the magistrate’s sentence downwards. The alteration has to be upward.
Accordingly, the appeal against sentence is hereby also dismissed and the sentence of four years imprisonment with hard labour plus three strokes of the cane imposed by the learned trial magistrate hereby set aside and substituted with the sentence of seven(7) years imprisonment.
Dated this 27th day of October, 2003.
J. M. KHAMONI
JUDGE