[2009] KEHC 2946 (KLR)
The court found that the sentence of seven years imposed on the appellant was excessive given the circumstances, including the fact that the appellant was a first offender and had already served four years in prison. The court noted that the relevant section under which the appellant was charged had been repealed,...
Source-derived case information.
- Citation
- [2009] KEHC 2946 (KLR)
- Parties
- Appellant: Hassan Makokha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 77 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced; appellant to be released unless otherwise lawfully held
- Legal Topics
- Abduction of Minors, Sentencing Principles, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hassan Makokha
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of seven years imposed on the appellant was lawful and proportionate.
- 2 Whether the appellant, as a first offender, was entitled to a lesser sentence under the relevant provisions of the Penal Code.
Ratio Decidendi
The court found that the sentence of seven years imposed on the appellant was excessive given the circumstances, including the fact that the appellant was a first offender and had already served four years in prison. The court noted that the relevant section under which the appellant was charged had been repealed, and that the punishment for abduction as a felony is seven years, but the facts and the appellant's plea of guilty warranted a reduction. The court exercised its discretion to reduce the sentence to four years and two months, which the appellant had already served, and ordered his release unless otherwise lawfully held.
Court Disposition
sentence reduced; appellant to be released unless otherwise lawfully held
Orders
- The sentence of seven years is reduced to four years and two months.
- The appellant has served the full sentence and shall be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Criminal Appeal 77 of 2005
HASSAN MAKOKHA.........................................APPELLANT
V E R S U S
REPUBLIC.......................................................RESPONDENT
J U D G E M E N T
The appellant was charged with the offence of abduction of a girl under the age of 16 years without the consent of her parents contrary to section 143 of the Penal Code. The appellant pleaded guilty to the charge and was sentenced to serve seven (7) years imprisonment.
The appellant preferred this appeal and during the hearing he relied on his grounds of Appeal which are that the seven (7) years sentence is too harsh and excessive and that he is a first offender.
Mr. Karuri, learned State Counsel did not oppose the appeal. He submitted that the trial magistrate erred in law as the offence the appellant was facing is a misdemeanor and attracts a maximum sentence of two years under section 36 of the Penal Code.
Section 256 of the Penal Code defines abduction as follows:-
“Any person who by force compels or by any deceitful means induces, any person to go from any place is said to abduct that person.”
Section 257 provides that punishment for the felony of abduction is seven years. Section 143 under which the appellant was charged with in 2005 was repealed in 2006.
According to the facts of the case, the appellant took away one Jane Malala who was 13 years. This was against the wish of the girl’s parents. The appellant pleaded guilty to the charge. He was sentenced on the same date he was charged, 24th June, 2005. The appellant has now served four years. This is enough punishment. I do reduce the sentence of seven years to four yearsandtwo months. The appellant has by now served the full sentence and shall be set at liberty unless otherwise lawfully held.
Dated, delivered and signed at Kakamega this 30th day of July, 2009
SAID J. CHITEMBWE
J U D G E