[2016] KEHC 191 (KLR)
The court found that the conviction and sentence of the 2nd appellant on Count No. 3 for possession of cannabis sativa could not stand as there was no report confirming the substance was cannabis sativa. Accordingly, the appeal on this count was allowed and the sentence set aside. For the remaining counts, the court...
Source-derived case information.
- Citation
- [2016] KEHC 191 (KLR)
- Parties
- Appellant: Issac Momanyi Nyakundi; Appellant: Peter Anyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 106 of 2015
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Appeal partially allowed.
- Judges
- JV Juma
- Legal Topics
- Sentencing Principles, Plea of Guilty, Concurrent Sentences, Possession of Narcotics
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Issac Momanyi Nyakundi
Appellant
Peter Anyango
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentences imposed on the appellants were lawful and appropriate given their plea of guilty.
- 2 Whether the conviction and sentence of the 2nd appellant on Count No. 3 (possession of cannabis sativa) was proper in the absence of a report confirming the substance.
Ratio Decidendi
The court found that the conviction and sentence of the 2nd appellant on Count No. 3 for possession of cannabis sativa could not stand as there was no report confirming the substance was cannabis sativa. Accordingly, the appeal on this count was allowed and the sentence set aside. For the remaining counts, the court held that the sentences imposed by the lower court were lawful, especially considering the appellants' guilty pleas and the fact that the offences occurred on the same date. However, in the interests of justice and proportionality, the court ordered that the sentences be served concurrently rather than consecutively, thereby partially allowing the appeal on sentence.
Court Disposition
Appeal partially allowed.
Orders
- The appeal of the 2nd appellant on Count No. 3 is allowed and the sentence on that count is set aside.
- The sentences imposed by the lower court on the remaining counts are upheld but will be served concurrently.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO. 106 OF 2015
ISSAC MOMANYI NYAKUNDI .......1ST APPELLANT
PETER ANYANGO ........................ 2ND APPELLANT
VERSUS
REPUBLIC ......................................... RESPONDENT
(Appeal from the Sentence of the Chief Magistrate’s Court at Molo, Hon. H. M. Nyaga– Chief Magistrate delivered on the 13th April 2015 in CMCR Case No. 966 of 2015)
JUDGEMENT
The two accused persons ISSAC MOMANYI NYAKUNDI (hereinafter referred to as the 1st Appellant) and PETER ANYANGO (herein after referred to as the 2nd Appellant), both faced two (2) counts of BREAKING INTO A BUILDING AND COMMITTING A FELONY CONTRARY TO SECTION 306(a) PENAL CODE. In addition the 2nd appellant faced a charge of BEING IN POSSESSION OF CANNABIS SATIVA. The appellants both pleaded ‘Guilty’ to the charges. Each was convicted on their own plea of Guilty and sentences to serve four (4) years on Count No. 1, three (3) years on Count Nos 2, and 3. The 1st appellant was sentenced to 1 year imprisonment on Count No. 4 and the 2nd appellant was sentenced to serve 1 year on Count No. 4.
At the hearing of their appeals the appellants both indicated that they do not seek to challenge the convictions. They each only seek to appeal against their sentences.
MS OUNDO learned State Counsel conceded the appeal only in respect to the 2nd appellant on Count No. 3. As she rightly pointed out that conviction was erroneous as no report was availed in the lower court to prove that the plant material recovered on the 2nd appellant was in fact Cannabis Sativa.I therefore allow the appeal of the 2nd appellant and set aside his sentence on Count No. 3.
Regarding the remaining sentences counsel opposed the appeal. I have looked at the charges. I note that the Burglary incidents all occurred on the same date. The appellants both pleaded guilty thus doing away with the need for a lengthy trial. I therefore allow their appeal against sentence and I direct that the sentences imposed by the lower court being lawful are hereby upheld but those sentences will be served concurrently. It is so ordered.
Dated in Nakuru this 7th day of November, 2016.
Both appellants present in person.
Maureen A. Odero
Judge
7/11/2016