[2012] KEHC 306 (KLR)
The court found that the appellant was sentenced to the statutory minimum of seven years imprisonment as provided under Section 308(1) of the Penal Code. The sentence was both legal and fair in the circumstances. The court held that it had no basis to interfere with the sentence, as it was neither illegal nor...
Source-derived case information.
- Citation
- [2012] KEHC 306 (KLR)
- Parties
- Appellant: Daniel Maina Gikuna; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 58 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; sentence confirmed
- Legal Topics
- Sentencing Principles, Preparation to Commit Felony, Minimum Sentence, Penal Code Section 308
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Maina Gikuna
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of seven years imprisonment imposed under Section 308(1) of the Penal Code was lawful and appropriate.
- 2 Whether the court should exercise leniency in sentencing given the appellant's personal circumstances.
Ratio Decidendi
The court found that the appellant was sentenced to the statutory minimum of seven years imprisonment as provided under Section 308(1) of the Penal Code. The sentence was both legal and fair in the circumstances. The court held that it had no basis to interfere with the sentence, as it was neither illegal nor excessive. The appellant's personal circumstances, including rehabilitation and family responsibilities, did not warrant a reduction below the statutory minimum. Consequently, the appeal on sentence was dismissed and the sentence confirmed.
Court Disposition
appeal dismissed; sentence confirmed
Orders
- The appeal is dismissed.
- The sentence of seven years imprisonment is confirmed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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DANIEL MAINA GIKUNA...………...……………….APPELLANT
VERSUS
REPUBLIC………………………...………………..RESPONDENT
JUDGMENT
Daniel Maina Gikuna, the appellant herein, was convicted for the offence of preparation to commit a felony contrary too Section 308 of the Penal Code. He had been charged with two other persons. The first accused was acquitted of the offence but the appellant and another were convicted and sentenced to seven (7) years imprisonment each.
When the appellant filed his petition of appeal in January 2011, he was aggrieved by both the conviction and sentence and sought to have the conviction quashed and sentence set aside. However, at the hearing of the appeal, the appellant abandoned the appeal on conviction and only asked for leniency on the sentence. He therefore beseeched the court to consider the fact that he has been undergoing rehabilitation for purposes of integration into the society; he has trained in vocational skills which he wishes to put to use; he is remorseful and will live as a law abiding citizen; he is a father of eight children, four of whom are adopted and they all require his support.
The state opposed the appeal. Mr. Omutelema, learned counsel for the State submitted that the appellant was given the minimum sentence under Section 308(1) of the Penal Code and the appeal should be dismissed. The appellant was charged under Section 308(1) of the Penal Code which provides as follows:-
“S308(1). Any person found armed with any dangerous or offensive weapon in circumstances that indicate that he was so armed with intent to commit any felony is guilty of a felony and is liable to imprisonment of not less than seven years and not more than fifteen years.”
It is clear that the minimum sentence is seven (7) years imprisonment.
The appellant was handed the minimum sentence which is legal and fair in the circumstanes and the court cannot interfere with it. For that reason, the appeal is dismissed, and the sentence confirmed. It is so ordered.
DATED and DELIVERED this 7th day of December, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
The appellant – in person
Mr. Omwenga for the State
Kennedy – Court Clerk