[2015] KEHC 7551 (KLR)
The High Court found no basis to interfere with the sentence imposed by the trial magistrate, holding that the appellant was fortunate to have been convicted and sentenced under Section 297(1) of the Penal Code (attempted robbery) rather than Section 297(2) (attempted robbery with violence), which carries a more...
Source-derived case information.
- Citation
- [2015] KEHC 7551 (KLR)
- Parties
- Appellant: Joseph Kamau Njoroge; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 209 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- LK Kimaru
- Legal Topics
- Sentencing Principles, Attempted Robbery, Judicial Discretion, Appeals on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joseph Kamau Njoroge
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant for attempted robbery was manifestly harsh, excessive, or unlawful.
- 2 Whether the appellate court should interfere with the trial court's exercise of discretion in sentencing.
Ratio Decidendi
The High Court found no basis to interfere with the sentence imposed by the trial magistrate, holding that the appellant was fortunate to have been convicted and sentenced under Section 297(1) of the Penal Code (attempted robbery) rather than Section 297(2) (attempted robbery with violence), which carries a more severe penalty. The court determined that the sentence was neither manifestly harsh nor unlawful and that the trial court had properly exercised its discretion. The appeal for reduction of sentence therefore lacked merit and was dismissed, with the appellant ordered to serve the sentence as imposed by the trial court.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The appellant shall serve the sentence imposed by the trial magistrate.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO.209 OF 2012
(An Appeal arising out of the conviction and sentence of HON. T. Mwangi - SRM delivered on 23rd July 2012 in Makadara CM.C. CR. Case No.1625 of 2012)
JOSEPH KAMAU NJOROGE….…………………………….APPELLANT
VERSUS
REPUBLIC…………………………………………..….........RESPONDENT
JUDGMENT
Joseph Kamau Njoroge, the Appellant herein was charged with the offence of attempted robbery with violence contrary to Section 297(2) of the Penal Code. The particulars of the offence were that on 5th April 2010 at Mwiki – Kasarani Road in Nairobi, the Appellant jointly with another not before court, while armed with a screwdriver attempted to rob John Njoroge Mwangi of his motor vehicle Registration No. KAR 141D Toyota 110 valued at Kshs.400,000/- and at or immediately before or immediately after the time of such attempted robbery used actual violence to the said John Njoroge Mwangi. When the Appellant was arraigned before the trial magistrate’s court, he pleaded not guilty to the charge. After full trial, he was found guilty of the lesser but cognate offence of attempted robbery contrary to Section 297(1) of the Penal Code. He was sentenced to serve four (4) years in prison. The Appellant was aggrieved by his conviction and sentence and duly filed an appeal to this court.
During the hearing of the appeal, the Appellant abandoned his appeal on conviction. Instead, he pleaded with the court for a reduction of sentence. He told the court that he was in remand for a period of two years and four months prior to his conviction. While in prison, he had learnt several trades including masonry, tree grafting and had qualified as a pastor. He told the court that he wanted to be a role model. He pleaded for the court to exercise leniency on him. Ms. Aluda for the State opposed the appeal. She was not impressed by the entreaties of the Appellant. She submitted that the Appellant ought to have been sentenced to serve a more severe sentence than the one that he is currently serving. She stated that the prosecution had established the necessary ingredients to support the charge of attempted robbery with violence contrary to Section 297(2) of the Penal Code which calls for a more severe sentence. She urged the court not to be persuaded by the submission made by the Appellant and instead dismiss the appeal.
This court has carefully considered the plea by the Appellant for reduction of sentence. When the Appellant was sentenced to serve the custodial sentence, the trial court was exercising its judicial discretion. As an appellate court, this court will only interfere with such exercise of judicial discretion if it is established that the sentence was manifestly harsh and excessive or was so lenient as to amount to a miscarriage of justice. This court will interfere with the sentence if it is established that the sentence was unlawful. In the present appeal, it was clear to this court that the Appellant was lucky that he was sentenced to serve a lesser severe sentence than he would have otherwise served. On perusal of proceedings of the trial court, this court is of the view that the trial court should have made the finding that the prosecution had established its case on the charge of attempted robbery with violence contrary to Section 297(2) instead of Section 297(1) of the Penal Code that the Appellant was convicted of. This court agrees with Ms. Aluda for the State that the Appellant should ride his luck and serve the remainder of the sentence that was imposed by the trial court because he would have otherwise served a more severe sentence.
In the premises therefore, the appeal lodged by the Appellant lacks merit and is here by dismissed. The Appellant will serve the sentence imposed by the trial magistrate. It is so ordered.
DATED AT NAIROBI THIS 22ND DAY OF JULY 2015
L. KIMARU
JUDGE