[2008] KEHC 2348 (KLR)
The court found that the appellant's plea of guilty was properly and unequivocally taken, as the charge and facts were read to him in Swahili and he admitted both. The conviction was therefore proper. On sentence, the court held that the sentence of 4 years imprisonment was well within the statutory maximum of 14...
Source-derived case information.
- Citation
- [2008] KEHC 2348 (KLR)
- Parties
- Appellant: Ali Ismael; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 264 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; conviction and sentence upheld
- Judges
- GMA Dulu
- Legal Topics
- Preparation to Commit Felony, Plea of Guilty, Sentencing Principles, Appellate Review of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Ismael
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea of guilty was properly taken and unequivocal.
- 2 Whether the sentence imposed was harsh or excessive and warranted appellate interference.
Ratio Decidendi
The court found that the appellant's plea of guilty was properly and unequivocally taken, as the charge and facts were read to him in Swahili and he admitted both. The conviction was therefore proper. On sentence, the court held that the sentence of 4 years imprisonment was well within the statutory maximum of 14 years for the offence of preparation to commit a felony. The sentencing magistrate considered relevant factors, including the appellant's status as a first offender and the seriousness of the offence. There was no evidence that the sentencing court applied a wrong principle or failed to consider relevant matters. The sentence was not harsh or excessive. Accordingly, there was no...
Court Disposition
appeal dismissed; conviction and sentence upheld
Orders
- The appeal is dismissed.
- The conviction and sentence of the subordinate court are upheld.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 264 of 2007
ALI ISMAEL …………………………………………………………………. APPELLANT
V E R S U S
REPUBLIC…………………………………………………………………. RESPONDENT
J U D G M E N T
ALI ISMAEL, the appellant, was charged before the subordinate court with preparation to commit a felony contrary to Section 308 (2) of the Penal Code. The particulars of offence were that on 22nd December, 2006 at Korogocho slums in Kariobangi in Nairobi within Nairobi Area, jointly with others not before court not being at their place of abode had articles for use in the course of or in connection with robbery namely knives. He was recorded as having pleaded guilty. He was sentenced to serve 4 years imprisonment. He therefore appealed to this court against the sentence. His petition of appeal filed on 7th May, 2007 he appeared also to challenge his conviction, by stating that the magistrate relied on information from an unreliable informer.
The learned State Counsel, Mrs. Obuo, opposed the appeal. Counsel contended that the maximum sentence for the offence was 14 years imprisonment. Counsel submitted that this court would call for a Probation Officer’s report.
I have considered the appeal and submissions of the appellant as well as the submissions of the State Counsel. In my view, the plea of guilt was properly taken. The charge was read to the appellant in Swahili. He admitted the same. The facts were summarized, and he also admitted the facts. That was when he was convicted on his own plea of guilty. In my view, a proper plea of guilty was recorded, and the conviction that followed it was also proper on the plea of guilty was unequivocal.
On sentence, the maximum sentence for the offence is 14 years imprisonment. The appellant was sentenced to serve 4 years imprisonment. Sentencing is essentially an exercise of discretion by the sentencing court. An appellate court will be slow to interfere with that exercise of discretion, unless it is shown that the sentencing court took into account an irrelevant factor, or that it failed to take into account a relevant factor, or that it applied a wrong principle or short of these that the sentence is so harsh and excessive that the application of a wrong principle must be inferred.
Having considered the circumstances of this case, and I find no wrong principle applied by the learned magistrate. The subordinate court took into account the fact that the appellant was a first offender, and the offence is common. Indeed, the offence is also serious at it militates against the peace and safety of people and property in Kenya. In my view, the sentence is neither harsh nor excessive.
Consequently, I dismiss the appeal and uphold both the conviction and sentence.
Dated and delivered at Nairobi this 7th day of May, 2008.
G.A. Dulu
Judge
In the presence of –
Appellant in person
Mrs Obuo for State – absent
Mwangi Court Clerk.