[2016] KEHC 991 (KLR)
The court held that section 308(1) of the Penal Code prescribes a mandatory minimum sentence of seven years imprisonment for the offence of preparing to commit a felony with a dangerous or offensive weapon. The trial court imposed the minimum sentence permitted by law, and there is no discretion to impose a lesser...
Source-derived case information.
- Citation
- [2016] KEHC 991 (KLR)
- Parties
- Appellant: Francis Mwaniki Mwangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 185 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Sentencing, Plea of Guilty, Preparing to Commit Felony, Mandatory Minimum Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mwaniki Mwangi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of seven years imprisonment for preparing to commit a felony under section 308(1) of the Penal Code is harsh or excessive.
- 2 Whether the trial court had discretion to impose a sentence other than the mandatory minimum custodial sentence.
Ratio Decidendi
The court held that section 308(1) of the Penal Code prescribes a mandatory minimum sentence of seven years imprisonment for the offence of preparing to commit a felony with a dangerous or offensive weapon. The trial court imposed the minimum sentence permitted by law, and there is no discretion to impose a lesser or non-custodial sentence. The appeal against sentence was therefore without merit and should have been summarily rejected. The appeal was dismissed accordingly.
Court Disposition
appeal dismissed
Orders
- The appeal against sentence is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL APPEAL NO. 185 OF 2011
FRANCIS MWANIKI MWANGI............APPELLANT
VERSUS
REPUBLIC................................................REPUBLIC
(Appeal against conviction and sentence in the Karatina Principal Magistrates’ Court Criminal Case No. 637 of 2011 (Hon. Mbugua) delivered on 29th July, 2011)
JUDGMENT
The appellant was charged with the offence of preparing to commit a felony contrary to section 308 (1) of the Penal Code in the Principal Magistrate’s Court at Karatina, Criminal Case No. 637 of 2011. The particulars were that on the 26th day of July, 2011 at Kirima village in Mathira West District within Central Province, not being at his place of abode, the appellant had with him an article for use in the course of or in connection with burglary namely a panga and a crow-bar. He was convicted on his own plea of guilty and sentenced to seven years imprisonment.
Despite having pleaded guilty, the appellant appealed against conviction and sentence; however, when the appeal came up for hearing, he abandoned the appeal against conviction and only asked this court to consider reducing the sentence.
Mr Njue for the state opposed the appeal and urged that the minimum sentence prescribed for the sort of offence the appellant was charged with is seven years imprisonment; this was the sentenced that was meted out and thus it should not be disturbed.
The record shows that the appellant pleaded guilty to the charge; he also confirmed the facts to be true. The plea was thus unequivocal and therefore the appellant was duly convicted on his own plea of guilty. The only question for determination in this appeal is whether the sentence meted out against him was harsh or whether it was open to the learned magistrate to mete out any other penalty other than the custodial sentence. The answer to this question lies in section 308 (1) of the Penal Code under which the appellant was charged; it states as follows:-
308. Preparations to commit felony
(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 apparent from this provision of the law that the sentence the appellant is asking this court to reconsider is not only the mandatory minimum sentence that the trial court could possibly mete out but it is also the only sentence prescribed; there is neither room for a fine in lieu of the prison term nor a non-custodial sentence.
Considering the mandatory provision of section 308(1) of the Code, the appellant’s appeal, in my humble view, ought not to have been admitted in the first place; it should have been rejected summarily under section 352 of the Criminal Procedure Code, Cap. 75.
There is little else to say about the appellant’s appeal except to dismiss it; it is so dismissed.
Signed, dated and delivered in open court this 9th December, 2016
Ngaah Jairus
JUDGE