[2001] KEHC 275 (KLR)
The court held that while the sentence imposed on the appellant was within the statutory limits and not excessive or illegal, the principle of uniformity in sentencing required that co-accused convicted of the same offence in the same circumstances should receive similar sentences unless there are distinguishing...
Source-derived case information.
- Citation
- [2001] KEHC 275 (KLR)
- Parties
- Appellant: Ayons Mbaazi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 464 of 1999
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Legal Topics
- Sentencing Principles, Uniformity of Sentence, Appeal Against Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ayons Mbaazi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was excessive or illegal.
- 2 Whether the sentence should be uniform with that of the co-accused in the absence of distinguishing circumstances.
Ratio Decidendi
The court held that while the sentence imposed on the appellant was within the statutory limits and not excessive or illegal, the principle of uniformity in sentencing required that co-accused convicted of the same offence in the same circumstances should receive similar sentences unless there are distinguishing factors. As no such distinguishing circumstances were found between the appellant and the co-accused, the court reduced the appellant's imprisonment term from three years to two years to match that of the co-accused, while retaining the corporal punishment component. The appeal was allowed to the extent of reducing the imprisonment term for the sake of parity.
Court Disposition
appeal_allowed_in_part
Orders
- The imprisonment term of 3 years is set aside and substituted with a term of 2 years.
- The sentence shall be for a period of 2 years and 3 strokes of the cane.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO.464 OF 1999
(Being an appeal from Original Conviction and Sentence in Criminal Case No.3994 of 1999 of the “Chief Magistrate’s Court at Mombasa –B. Maloba, RM)
AYONS MBAAZI …………………………………………. APPELLANT
VERSUS
REPUBLIC ……………………………………………….. RESPONDENT
JUDGMENT
The Appellant was charged with others of breaking a room contrary to section 306(a) and stealing contrary to section 279(h) of the Penal Code. The appellant pleaded guilty and was convicted and sentenceD. He has filed this appeal against sentence only. In the same case he was charged with 4 other accused, three of whom were acquitted under Section 215 Criminal Procedure Code, but one was convicted and sentenced to 2 years imprisonment and 3 strokes of the cane. This was after a full trial. From the facts of the case stated by the prosecutor the Appellant was found with 225 Dutch Guilds and this the appellant admitted. The trial magistrate imposed an imprisonment term of 3 years together with 3 strokes of the cane on each limb of the offence.
The maximum sentence specified for these offences is 7 years and 14 years respectively together with corporal punishment. The issue of passing sentence is always in the discretion of the trial court and the Appellate Court will not interfere unless the sentence is excessive or illegal. In this case the sentence imposed cannot be said to be excessive or illegal. However the punishment for same offence should be uniform unless there are circumstances that, warrants distinction between co-accused. I find no such circumstances here and for the sake of uniformity it is my opinion that the period of imprisonment should be reduced to be similar to that of the co-accused.
The outcome is therefore that imprisonment term for the term of 3 years is hereby set aside and substituted with one of 2 years. The sentence shall therefore be for a period of 2 years and 3 strokes of the cane. The appeal is allowed to that extent.
Dated at Mombasa this 29th Day of August, 2001.
J. KHAMINWA
COMMISSIONER OF ASSIZE
Read in present of State Counsel Ogoti and Appellant in open Court.
J. KHAMINWA
COMMISSIONER OF ASSIZE