[2016] KEHC 5829 (KLR)
The court found that the minimum sentence for the offence of possession of an imitation firearm with intent to commit a criminal offence is seven years, as stipulated by Section 34(1) of the Firearms Act. The trial court had imposed the statutory minimum, and the appellate court found no legal basis to interfere...
Source-derived case information.
- Citation
- [2016] KEHC 5829 (KLR)
- Parties
- Appellant: Jackson Mwaiwa Malika; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 45 of 2011
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- appeal dismissed
- Judges
- LN Mutende
- Legal Topics
- Possession of Narcotic Drugs, Possession of Imitation Firearm, Sentencing Principles, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Mwaiwa Malika
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence imposed for possession of an imitation firearm without a certificate was lawful and appropriate.
- 2 Whether the sentences for the two counts should run concurrently.
- 3 Whether there are mitigating circumstances warranting reduction or alteration of the sentence.
Ratio Decidendi
The court found that the minimum sentence for the offence of possession of an imitation firearm with intent to commit a criminal offence is seven years, as stipulated by Section 34(1) of the Firearms Act. The trial court had imposed the statutory minimum, and the appellate court found no legal basis to interfere with the sentence. The appellant had already served the sentence for the first count, and the request for concurrent sentences was rendered moot. The court considered the mitigation and the State's concession but held that the law did not permit reduction below the statutory minimum. Consequently, the appeal against sentence lacked merit and was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal against sentence is dismissed.
- The sentence imposed by the trial court is upheld.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. 45 OF 2011
JACKSON MWAIWA MALIKA...............……....………..APPELLANT
VERSUS
REPUBLIC ……………….......………….…………… RESPONDENT
(Being an appeal from the original conviction and sentence in Machakos Chief Magistrate’s Court Criminal Case No. 2573 of 2009 by Hon. S. M. Mungai S P M on 11/10/10)
J U D G M E N T
Jackson Mwaiwa Malika,the appellant, was charged as follows:
Count 1: Being in possession of Cannabis Sativa (Bhang)contrary to Section 3(1)as read with Section 2(b)of Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. Particulars of the offence being that on the 24thday of September, 2009at Mlolongo Townshipin Machakos Districtwithin Eastern Province,was found being in possession of thirty onerolls of Cannabis Sativa (Bhang)valued at Kshs. 620/=which were not in any form of medicinal preparation.
Count 2: Being in possession of firearm or imitation of firearm without firearm certificatecontrary to Section 34(1)of the Firearm Act Cap 114 Laws of Kenya.The particulars of the offence being that on the 24thday of September, 2009at Mlolongo Townshipin Machakos Districtwithin Eastern Province,was found being in possession of an Imitation Firearmnamely Toy Pistolwithout a firearm certificate.
He admitted Count 1where he was sentenced to serve four (4) years imprisonment.Having denied Count 2,the case in respect of the charge was set down for hearing. Facts as presented by the Prosecution were that police officers acting on information received went to the house of the accused which they searched and recovered some 31 rolls of dry plant materialand a toy pistol.They arrested the accused. He was charged with the offences.
When put on his defence the accused denied having been in possession of an imitation of a firearm as alleged. He stated that the police had a habit of collecting money from him as a fee to allow him continue selling Cannabis (bhang).On the fateful date he had no money to give them. Therefore upon finding the cannabisandtoy pistolthey arrested him. He however did not understand if they were the police who had the imitation of a firearm.
The trial magistrate considered evidence adduced and found the Appellant guilty hence sentencing him to Seven (7) years imprisonmenton the second count.
Being dissatisfied with the decision of the court the Appellant appealed against the conviction and sentence. However, at the hearing of the appeal he abandoned the appeal on conviction and only mitigated on sentence.
In mitigation he prayed for reduction of the sentence imposed and sought an order for the two (2) sentences to run concurrently. He asked the court to consider that his mother is mentally unsound.
In response thereto the State through State Counsel, Mr. Shijenjedid not object to the sentence running concurrently. He also conceded to the Appellant’s sentence being reduced and if considerate an order to be made for him to serve the remaining part of the sentence as a non-custodial one.
My duty as the first appellate court is to re-consider the findings of the trial court and come up with my own conclusion bearing in mind that I did not hear what transpired at trial. (See Okeno V. Republic (1972) EA 32).
Having been convicted in 2009, the Appellant has already served the sentence on the first count.
With regard to the second count having been sentenced on 11th October, 2010the appellant has served five (5) years imprisonment.The Appellant was charged with an offence contrary to Section 34(1)of the Firearms Actthat provides thus:
“(1) If any person makes or attempts to make any use of a firearm or an imitation firearm with intent to commit any criminal offence he shall be guilty of an offence and liable to imprisonment for a term of not less than seven, but not exceeding fifteen years, and where any person commits any such offence he shall be liable to the penalty provided by this subsection in addition to any penalty to which he may be sentenced for that other offence.”
The minimum sentence provided for the offence being Seven (7) yearsthis court has no reason to interfere with the sentence imposed by the trial court. In the premises the appeal lacks merit. Therefore, it is dismissed.
It is so ordered.
Dated, Signedand Deliveredat Kituithis 2ndday of February,2016.
L. N. MUTENDE
JUDGE