[2011] KECA 374 (KLR)
The Court of Appeal held that the enhancement of the appellant's sentence by the High Court from 6 to 14 years imprisonment was improper. The trial magistrate had exercised discretion in sentencing the appellant, a first offender who pleaded guilty, to 6 years imprisonment, which was within the statutory maximum....
Source-derived case information.
- Citation
- [2011] KECA 374 (KLR)
- Parties
- Appellant: Francis Odingi; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 28 of 2006
- Procedural Posture
- Criminal Appeal / Appeal From High Court Conviction and Sentence
- Outcome
- Appeal allowed in part; sentence of 6 years restored.
- Legal Topics
- Sentencing Principles, Enhancement of Sentence, Plea of Guilty, Magistrates Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Odingi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From High Court Conviction and Sentence
Legal Issues
- 1 Whether the High Court erred in enhancing the appellant's sentence from 6 to 14 years imprisonment.
- 2 Whether the High Court had jurisdiction to impose a greater sentence than that imposed by the trial court.
- 3 Whether there were compelling reasons to enhance the sentence in the absence of an application by the Attorney General.
Ratio Decidendi
The Court of Appeal held that the enhancement of the appellant's sentence by the High Court from 6 to 14 years imprisonment was improper. The trial magistrate had exercised discretion in sentencing the appellant, a first offender who pleaded guilty, to 6 years imprisonment, which was within the statutory maximum. The High Court had no compelling reason to enhance the sentence, particularly in the absence of an application by the Attorney General for such enhancement. Furthermore, Section 354(6) of the Criminal Procedure Code prohibits the High Court from imposing a greater sentence than that which could have been imposed by the trial court. The appellate court found that the original...
Court Disposition
Appeal allowed in part; sentence of 6 years restored.
Orders
- The appellant will serve the 6 years sentence imposed by the learned Senior Resident Magistrate on 24th October, 2002.
Full Case Text
Judgment text and source record
36 paragraphs
IN THE COURT OF APPEAL
AT NAKURU
CORAM: GICHERU, C.J., O’KUBASU & AGANYANYA, JJ.A.
CRIMINAL APPEAL NO. 28 OF 2006
BETWEEN
FRANCIS ODINGI ………………………….……….…………….….…… APPELLANT
AND
REPUBLIC ……….……………………….……..………………………. RESPONDENT
(An appeal from the conviction & sentence of the High Court of Kenya at Kericho (Apondi, J) dated 28th June, 2005
in
HCCRA NO. 10 OF 2003) ***************
JUDGMENT OF THE COURT
Francis Odingi, the appellant was charged in the Principal Magistrate’s court at Kericho with the offence of committing an unnatural offence, contrary to Section 162 (a) of the Penal Code. The particulars of the charge were that on the 18th day of October, 2002, in Kericho District of the Rift Valley Province, he had carnal knowledge of M.O against the order of nature.
When the appellant was taken to court on 24th October, 2002, he admitted the offence by pleading guilty to the charge. Then Inspector of Police Okila, who was conducting the prosecution case, narrated the facts which gave rise to the charge. The appellant replied:
“Maelezo ni ya ukweli. - The particulars are correct.”
The learned Senior Resident Magistrate (Ombaye) then convicted the appellant on his own plea of guilty. The appellant then mitigated as follows:
“Mimi ni mtoto wa shule. – I am a student.”
The learned Senior Resident Magistrate considered the mitigating circumstances and sentenced the appellant to 6 (six) years imprisonment. His appeal to the superior court was dismissed save that the learned Judge (Muga Apondi J) enhanced the sentence from 6 (six) to 14 (fourteen) years imprisonment. He appealed to this Court in a Memorandum of Appeal filed herein and which had 9 grounds all referred to as grounds of mitigation. However, when he appeared before us on 22nd February, 2011, the appellant said he was satisfied with the conviction but pleaded for the reduction of the sentence. Mr Omwega, learned Principal State Counsel opposed the appeal stating that although the sentence provided for the offence was 21 years, the appellant was only handed 14 years. We note this is the maximum sentence provided under Section 162 (a) of the Penal Code.
Section 354 (3) (iii) of the Criminal Procedure Code, Chapter 75, Laws of Kenya provides:
“(b)In an appeal against sentence the High Court can increase or reduce sentence.”
However, Section 354 (6) specifically provides that:
“6. Nothing in sub section (ii) shall empower the High Court to impose a greater sentence than might have been imposed by the court which tried the case.”
The charge facing the appellant wastriable by the learned Senior Resident Magistrate. The sentence provided for the offence is 14 (fourteen) years, but the learned magistrate sentenced the appellant to 6 (six) years imprisonment. He was aware and recorded that the appellant was a first offender and other mitigating circumstances and this is why he handed down 6 (six) years imprisonment. This was a discretionary function and it is our view that since the Attorney General had not applied for enhancement of the sentence, there were no compelling reasons for the learned Judge to enhance it as he did.
In the circumstances, we allow this appeal to the extent that the appellant will serve the 6 (six) years sentence imposed by the learned Senior Resident Magistrate on 24th October, 2002. This will be the order of the Court.
Dated and delivered at Nakuru this 24th day of February, 2011.
J. E. GICHERU
--------------------------
CHIEF JUSTICE
E. O. O’KUBASU
--------------------------
JUDGE OF APPEAL
D. K. S. AGANYANYA
--------------------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR