[2005] KEHC 1319 (KLR)
The court found that the sentence of 7 years imprisonment and 8 strokes of the cane imposed on the appellant exceeded the statutory maximum of 5 years imprisonment with hard labour as provided under Section 308(2) of the Penal Code. Furthermore, the section does not authorize the imposition of corporal punishment....
Source-derived case information.
- Citation
- [2005] KEHC 1319 (KLR)
- Parties
- Appellant: Henry Mwangi Gikonyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 476 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- A. Ong’injo
- Legal Topics
- Sentencing Principles, Preparation to Commit Felony, Corporal Punishment, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Mwangi Gikonyo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant exceeded the statutory maximum for the offence of preparation to commit a felony.
- 2 Whether the imposition of corporal punishment was lawful under the relevant section of the Penal Code.
Ratio Decidendi
The court found that the sentence of 7 years imprisonment and 8 strokes of the cane imposed on the appellant exceeded the statutory maximum of 5 years imprisonment with hard labour as provided under Section 308(2) of the Penal Code. Furthermore, the section does not authorize the imposition of corporal punishment. The court therefore reduced the sentence to the period already served and set aside the corporal punishment, holding that the legislature did not intend for corporal punishment to be imposed for this offence. The appeal on sentence was allowed to that extent, and the appellant was ordered to be released unless otherwise lawfully held.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence is reduced to the period already served.
- The order for 8 strokes of the cane is set aside.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL 476 OF 2003
(From original conviction and sentence in Criminal Case No. 2363 of 2000 of the Senior Principal Magistrate’s Court, Naivasha – Mr. Martin Muya)
HENRY MWANGI GIKONYO….…...…………..………………………APPELLANT
VERSUS
REPUBLIC……………………...……………….…………………..RESPONDENT
JUDGMENT
The Appellant has appealed against the original conviction and sentence in Principal Magistrate Naivasha Criminal Case No. 2363 of 2000. In that case, the Appellant had been charged for the offence of preparation to commit a felony contrary to Section 308 (2) of the Penal Code.
The facts of the prosecution case as stated in the Charge Sheet are as follows:
“On the 9th December, 2000 along Mai-Mahiu-Naivasha Road within Nakuru District of the Rift Valley Province, jointly with others not before Court not being at his place of abode, had with him one toy pistol, one walkie-talkie and on imitated police cap likely to be used in the course of committing a felony namely robbery.”
After a full trial, the Appellant was found “guilty” and convicted accordingly. Consequently, the learned Magistrate viz, Mr. Martin Muya, then Senior Principal Magistrate, Naivasha sentenced the Appellant to 7 years imprisonment and 8 strokes of the cane. He also ordered that the Appellant be placed under police supervision for 5 years after he has completed his sentence. During the hearing, the Appellant opted to abandon his appeal on conviction. Instead, he appealed against the sentence that was imposed against him. The Appellant complained that when he was jailed, he had hypertension which resulted in him being admitted at the Kenyatta National Hospital for 5 months. Besides the above, the Appellant explained that he has been trained in leatherwork and upholstery design.
On the other hand, the State through Mr. Gumo, Assistant Deputy Public Prosecutor submitted that he wished to leave the matter with the Court. This Court has carefully perused the above together with the entire record of appeal. It is apparent that the Appellant was arrested while in possession of a toy pistol, a walkietalkie and imitation police cap. The evidence was simply overwhelming against the Appellant and hence that explains why he opted notto challenge the conviction. As far as the sentence is concerned, the maximum provided by the law is imprisonment with hard labour for 5 years. In this case, the Appellant was sentenced to 7 years imprisonment and 8 strokes of the cane. Given the circumstances of the case, I hereby reduce the sentence imposed to the period already served. I will also set aside the corporal punishment of 8 strokes of the cane since the above Section is silent on the same. That means that the legislature never saw any need to impose corporal punishment. It is only to that extent that the appeal succeeds. The Appellant should be released forthwith unless held lawfully.
MUGA APONDI
JUDGE
Judgment read, signed and delivered in open Court in the presence of Mr. Gumo –
Assistant Deputy Public Prosecutor and the Appellant.
MUGA APONDI
JUDGE
25TH OCTOBER, 2005