[2010] KEHC 3146 (KLR)
The trial magistrate erred by sentencing the appellant under section 308(1) of the Penal Code, which prescribes a minimum sentence of seven years and a maximum of fifteen years, instead of section 308(2) as charged. The correct sentencing provision, section 308(4), prescribes five years imprisonment with hard labour...
Source-derived case information.
- Citation
- [2010] KEHC 3146 (KLR)
- Parties
- Appellant: Joseph Mburu Kungu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 214 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- SP Ouko
- Legal Topics
- Sentencing Error, Preparation to Commit Felony, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mburu Kungu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate imposed the correct sentence under section 308(2) of the Penal Code.
- 2 Whether the sentence imposed was excessive and based on a misinterpretation of the law.
Ratio Decidendi
The trial magistrate erred by sentencing the appellant under section 308(1) of the Penal Code, which prescribes a minimum sentence of seven years and a maximum of fifteen years, instead of section 308(2) as charged. The correct sentencing provision, section 308(4), prescribes five years imprisonment with hard labour unless the accused has a previous conviction for a felony relating to property, which was not established in this case. Consequently, the sentence of ten years was excessive and unlawful. The High Court set aside the original sentence and substituted it with a sentence of three years imprisonment, taking into account the period already served.
Court Disposition
appeal_allowed
Orders
- The sentence of ten years imprisonment with hard labour is set aside.
- The appellant is sentenced to three years imprisonment, taking into account the period already served.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Criminal Appeal 214 of 2008 (An Appeal from original conviction and sentence in Nakuru C.M.CR.C.NO.4553/2008 by Hon J. G. King'ori Ag. Senior Principal Magistrate, dated 8th September, 2008)
JOSEPH MBURU KUNGU………………………APPELLANT
VERSUS
REPUBLIC……………………………………..RESPONDENT
JUDGMENT
The appellant having pleaded guilty to the offence of preparation to commit a felony contrary to section 308(2) of the Penal Code was upon conviction sentenced to ten (10) years imprisonment with hard labour.He has preferred this appeal challenging both the conviction and sentence on five grounds, which he abandoned when the appeal came up for hearing, only retaining the ground on the sentence.
Learned counsel for the respondent noted that the learned trial magistrate misunderstood the sentence to be imposed for the offence under section 308(2) and instead imposed a sentence provided for under section 308(1).
In sentencing the appellant, the learned magistrate remarked that:
“Offence is quite serious.It attracts a minimum sentence of 10 years and a maximum of 14 years with hard labour.As a first offender, I shall impose a minimum sentence which is 10 years imprisonment with hard labour.”
No doubt the learned magistrate relied on the amended section 308(1) which relates to a person who is found armed with a dangerous or offensive weapon.By Act No.22 of 1987 the sentence of fourteen years (not exceeding) and hard labour was amended.
Act No.5 of 2003 provides that any person found guilty under section 308(1) is liable to imprisonment of not less than seven years and not more than fifteen years.The appellant was charged under section 308(2) whose punishment is provided for under sub-section (4) as imprisonment with hard labour for five years, unless he has been previously convicted of a felony relating to property in which case the sentence is ten years.There was no evidence that the appellant had a previous conviction.To the extent that the sentence was based on a wrong provision of the law and in turn was excessive, this appeal succeeds and it is ordered that the sentence be and is hereby set aside, and substituted therefor, in terms of section354(3)(b)of the Criminal Procedure Code, with three (3) years imprisonment taking into account the years he has served.
Dated, Signed and Delivered at Nakuru this 5th day of March, 2010.
W. OUKO
JUDGE