[2007] KEHC 3428 (KLR)
The court found that the prosecution failed to prove the offence of preparation to commit a felony beyond reasonable doubt. The only evidence was that the appellant was found with a sword and a torch outside a bar, which are not, by themselves, sufficient to establish preparation to commit a felony. The evidence of...
Source-derived case information.
- Citation
- [2007] KEHC 3428 (KLR)
- Parties
- Appellant: Genaro Mwangi Ng'ang'a; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 10 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be set at liberty unless otherwise lawfully held
- Judges
- GMA Dulu
- Legal Topics
- Preparation to Commit Felony, Burden of Proof, Contradictory Evidence, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Genaro Mwangi Ng'ang'a
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved the offence of preparation to commit a felony against the appellant beyond reasonable doubt.
- 2 Whether possession of a sword and a torch constitutes preparation to commit a felony under section 308(2) of the Penal Code.
- 3 Whether the trial magistrate shifted the burden of proof to the appellant.
Ratio Decidendi
The court found that the prosecution failed to prove the offence of preparation to commit a felony beyond reasonable doubt. The only evidence was that the appellant was found with a sword and a torch outside a bar, which are not, by themselves, sufficient to establish preparation to commit a felony. The evidence of the prosecution witnesses was contradictory, and the trial magistrate improperly shifted the burden of proof to the appellant. Furthermore, the sentence imposed was harsh and excessive for a first offender. Consequently, the appeal was allowed, the conviction quashed, and the sentence set aside.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be set at liberty unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 10 of 2006
From Original Conviction and Sentence in Criminal Case No. 8235 of 2004 of the Senior Principal Magistrate’s Court at Kibera)
GENARO MWANGI NG’ANG’A……………………..APPELLANT
VERSUS
REPUBLIC………………………………………….RESPONDENT
JUDGMENT
The appellant GENARO MWANGI NG’ANG’A was convicted in the subordinate court with the offence of preparation to commit a felony contrary to section 308(2) of the Penal Code. The particulars of the offence were that on 12th October 2004 at Palace bar-Kangemi in Nairobi within Nairobi area, not being at his place of abode had with him articles for use in the course of, or in connection with burglary namely a sword and a torch. On conviction he was sentenced to serve ten (10) years imprisonment.
Being dissatisfied with the decision of the learned trial magistrate he has come to this court on appeal, challenging both conviction and sentence.
At the hearing of the appeal, learned State Counsel Mr. Makura conceded to appeal on the ground that the elements of the charge were not proved. The appellant was found with a panga and a torch which could not support the charge. In addition, counsel contended that, the evidence of PW1 and PW2 was contradictory. Counsel also contended that at page J.2 of the judgment, the learned trial magistrate shifted the burden of proof. On sentence, counsel contended that the sentence of 10 years imprisonment for a first offender was harsh and excessive.
I have re-evaluated the evidence on record, as I am required to do on a first appeal. Indeed, the charge and the evidence is that the appellant was found with a sword and a torch outside the subject bar. The allegation is that he had those items in connection with an intended burglary. Clearly, a sword and a torch cannot be said to be items meant for the purpose of burglary. I agree with the submission of the learned State Counsel that there was no evidence to support or prove the charge leveled against the appellant. I will allow the appeal on that account.
The sentence meted against the appellant was ten (10) years imprisonment. The appellant was a first offender. Indeed, as submitted by the learned State Counsel, the maximum sentence for the offence is ten (10) years imprisonment. The sentence meted by the learned trial magistrate in the circumstances was clearly harsh and excessive. However, as I have allowed the appeal on conviction, I will set aside the whole sentence.
The upshot is that I allow the appeal, quash the conviction and set aside the sentence. I order that the appellant be set at liberty, unless otherwise lawfully held.
Dated at Nairobi this 4th day of July 2007.
George Dulu
Judge
In the presence of –
Appellant
Mr. Makura for State - absent
Eric – Court Clerk