[2007] KEHC 2453 (KLR)
The court found that the trial magistrate imposed the maximum sentence of 5 years with hard labour for the offence of preparation to commit a felony under Section 308 (2) of the Penal Code. Upon review, the High Court agreed with the respondent's concession that there were no exceptional circumstances to warrant the...
Source-derived case information.
- Citation
- [2007] KEHC 2453 (KLR)
- Parties
- Appellant: Michael Ngugi Kimani; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 87 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; sentence reduced; appellant released
- Legal Topics
- Sentencing, Preparation to Commit Felony, Penal Code Section 308, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Ngugi Kimani
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 5 years with hard labour imposed on the appellant was excessive and justified under Section 308 (4) of the Penal Code.
- 2 Whether there were exceptional circumstances to warrant the maximum sentence.
Ratio Decidendi
The court found that the trial magistrate imposed the maximum sentence of 5 years with hard labour for the offence of preparation to commit a felony under Section 308 (2) of the Penal Code. Upon review, the High Court agreed with the respondent's concession that there were no exceptional circumstances to warrant the maximum sentence. The court held that in the absence of such circumstances, the sentence was excessive and not justified. Consequently, the sentence was set aside and substituted with a term of 15½ months' imprisonment, which the appellant had already served, leading to his immediate release.
Court Disposition
appeal allowed; sentence reduced; appellant released
Orders
- The appeal is allowed.
- The sentence of 5 years with hard labour is set aside.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Criminal Appeal 87 of 2006
MICHAEL NGUGI KIMANI ……….........……………….....…....APPELLANT
VERSUS
REPUBLIC ………………………………………………….. RESPONDENT
JUDGEMENT
The Appellant was convicted on 29th March, 2006 for the offence of preparation to commit a felony contrary to Section 308 (2) of the Penal Code. He was sentenced to 5 years with hard labour.
Being aggrieved with the sentence, he lodged this appeal with a view of obtaining a reduced sentence. The Respondent through Mr. Omutelema does not oppose the appeal to this extent. Mr. Omutelema conceded that the sentence meted out was in fact the maximum provided by law under Section 308 (4) of the Penal Code. He stated that there were no exceptional circumstances to warrant the maximum sentence.
I have considered the appeal and the concession by the Respondent. I have also perused the proceedings. I do agree that there are no exceptional circumstances for the application of the maximum sentence allowable by the law.
As a result I do hereby allow the appeal and set aside the sentence of 5 years and hard labour. I substitute the said sentence with imprisonment for a period of 15½ (fifteen and a half) months from the date of conviction.
Since the Appellant has been in prison for the said period of 15½ months, it is deemed that he has fully served his sentence. I therefore order that the Appellant be released from Prison with immediate effect unless he shall otherwise be lawfully held. Orders accordingly.
DATED AND DELIVERED AT ELDORET ON THIS 19TH DAY OF JULY, 2007.
M. K. IBRAHIM
JUDGE