[2006] KEHC 379 (KLR)
The court found that the evidence against the appellant was clear and credible. The appellant was identified by the complainant as the person who followed him in a suspicious manner and was subsequently found by police armed with an axe and wearing dark sunglasses at 10:30 p.m. The court held that these...
Source-derived case information.
- Citation
- [2006] KEHC 379 (KLR)
- Parties
- Appellant: Amos Chacha Werema; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 157 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction upheld, sentence reduced to time served, appellant released
- Judges
- K Bauni
- Legal Topics
- Preparation to Commit Felony, Sentencing Principles, First Offender Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amos Chacha Werema
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for preparation to commit a felony was supported by the evidence.
- 2 Whether the sentence of 10 years imprisonment was harsh and excessive given the circumstances.
Ratio Decidendi
The court found that the evidence against the appellant was clear and credible. The appellant was identified by the complainant as the person who followed him in a suspicious manner and was subsequently found by police armed with an axe and wearing dark sunglasses at 10:30 p.m. The court held that these circumstances justified the inference that the appellant was preparing to commit a felony, thus upholding the conviction. However, the court found the sentence of 10 years imprisonment to be harsh and excessive, especially considering that the appellant was a first offender and had mitigating personal circumstances. The sentence was therefore set aside and substituted with a sentence...
Court Disposition
conviction upheld, sentence reduced to time served, appellant released
Orders
- The appeal against conviction is dismissed.
- The appeal against sentence is allowed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA OF KISII
Criminal Appeal 157 of 2005
AMOS CHACHA WEREMA ………..………………………………….. APPELLANT
VERSUS
REPUBLIC …………………………………………………………….. RESPONDENT
(From original conviction and sentence of the RM’s court at Kehancha in criminalcase No. 57 of 2004)
JUDGMENT:
Appellant was convicted by Resident Magistrate Kehancha for the offence of preparation to commit a felony. Particulars were that on 30th June 2004 at Nyamaharaga village in Kuria District he was found with an offensive weapon namely an axe with intent to commit a felony. He was sentenced to 10 years imprisonment.
On the fateful night at 10. 30 p.m. JOHN NCHAGWA (PW1) was walking home from Isabania market. He met a man who started following him. He became suspicious and went back to Isabania and reported to police. Police officers went there and after a while met the appellant. He was told to stop but instead he produced an axe and challenged the police. He was however arrested. He had dark sunglasses. He was charged.
In defence the appellant said that on the alleged night he was at his home all along. He was arrested later by two policemen.
The evidence adduced was clear. Appellant was arrested by PW2 & 3. He had an axe and had dark sunglasses. PW1 identified him as the person who had followed him in a suspicious manner. The finding of the magistrate was proper. A man armed with an axe and wearing dark sunglasses at 10. 30 p.m. in the night cannot be up to any good. He must have been preparing to commit a crime. His conviction therefore was proper and the same is upheld.
As to sentence he was jailed for 10 years. He was a first offender and said he was an orphan. 10 years imprisonment was harsh and excessive, in the circumstances. I therefore allow the appeal against sentence and I set aside the sentence of 10 years and since he has already served over one year I substitute it with one of the period already served.
Appellant be set at liberty forthwith unless otherwise legally held.
Dated 14th June 2006.
KABURU BAUNI
JUDGE
Cc – Mobisa
Mr. Kemo for State
Appellant present