[2013] KEHC 188 (KLR)
The court found that the sentences of 8 years imprisonment imposed on both appellants were neither harsh nor unfair given the gravity of the offences and the circumstances under which they were committed. The 1st appellant was convicted for being in possession of an imitation firearm used to intimidate robbery...
Source-derived case information.
- Citation
- [2013] KEHC 188 (KLR)
- Parties
- Appellant: John Mwangi Wangeci; Appellant: John Njaramba Ndiritu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 238 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- MJA Emukule, DO Ohungo
- Legal Topics
- Sentencing Principles, Imitation Firearm Offences, Handling Stolen Goods, Robbery With Violence, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mwangi Wangeci
Appellant
John Njaramba Ndiritu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentences imposed on the appellants were harsh or unfair and warranted reduction on appeal.
- 2 Whether there was any justification to interfere with the trial court's exercise of discretion in sentencing.
Ratio Decidendi
The court found that the sentences of 8 years imprisonment imposed on both appellants were neither harsh nor unfair given the gravity of the offences and the circumstances under which they were committed. The 1st appellant was convicted for being in possession of an imitation firearm used to intimidate robbery victims, while the 2nd appellant was convicted for handling stolen goods soon after a violent robbery. The court noted that the evidence strongly supported the more serious charge of robbery with violence, but the appellants had been acquitted of that on technicalities. The court held that there was no justification to interfere with the trial court's exercise of discretion in...
Court Disposition
appeal dismissed
Orders
- The appeal against sentence is dismissed.
- The sentences of 8 years imprisonment for each appellant are upheld.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO.238 OF 2011
(consolidated with HCRA. NO.239 of 2011)
JOHN MWANGI WANGECI ................ 1ST APPELLANT
JOHN NJARAMBA NDIRITU .............. 2ND APPELLANT
VERSUS
REPUBLIC ........................................... RESPONDENT
(From original conviction and sentence in SPMCR Case No.871 of 2011 – a decision by A.B. Mongare, Senior Resident Magistrate, Nyahururu dated 14th September, 2011)
JUDGMENT
JOHN MWANGI WANGECI alias Junior (1st appellant) and JOHN NJARAMBA NDIRITU (2nd appellant) were jointly charged before the trial magistrate with various offences, some committed jointly and others separately.
In the charges of robbery where they were jointly charged, both were acquitted. 1st appellant was convicted on a charge of being in possession of an imitation firearm contrary to Section 21(1) as read with sub-section 21(2) of the Firearms Act Cap 114 Laws of Kenya. He had been found in possession of an imitation firearm resembling an MP5. He was sentenced to 8 years imprisonment.
The 2nd appellant was convicted on a charge of handling stolen goods contrary to Section 322 of the Penal Code Cap 63, Laws of Kenya and sentenced to serve 8 years imprisonment. The trial magistrate noted that the appellant got off the hook on the charge of robbery purely on technicalities and was satisfied that he too deserved a deterrent sentence.
At the hearing of the appeal, the appellants abandoned the appeal on conviction and only prosecuted their appeal on sentence.
In their oral submissions they urged the court to reduce the sentence. The background to this matter is that there was one incident of robbery with violence on 13/04/2011 at Nyahururu Township where two individuals ANTHONY MAINA GATHONI and SAMUEL MWANGI GAKUYA were violently robbed of their property which included cash and mobile phones, by persons who were armed with iron bars and a toy pistol.
A day after the robbery the 2nd appellant offered a phone belonging to one of the victims for sale – by some ill twist of fate, the offer was made to someone who knew the victim and was even aware of his loss of a phone – that is how 2nd appellant ended up being arrested. At the time of arrest he was in 1st appellant’s company, who was also arrested.
The 1st appellant after being questioned offered to show where the gun which had been used in the robbery was. The police recovered the toy pistol.
The State represented by Miss Karoki made no response on the appeal against sentence.
We have considered the evidence on record, the circumstances under which the gun was recovered, apparently it had found frequent use in intimidating people and indeed was the one used to cow the two victims. Had the appellants pushed their appeal, in fact this is a case where the evidence strongly supported the offence of robbery with violence. We think the appellants were very discerning and wise to abandon the appeal on conviction. They were fortunate to get away with a jail term of 8 years and in our view this sentence is neither harsh nor unfair. We find no reason whatsoever to warrant interfering with the sentence and their appeal is dismissed.
Delivered and dated this 21st day of June, 2013 at Nakuru.
M.J. ANYARA EMUKULE
JUDGE
H.A. OMONDI
JUDGE