[2006] KEHC 1468 (KLR)
The court found that the sentence of 36 months imprisonment imposed by the trial magistrate was illegal, as it exceeded the statutory maximum of 2 years for the offence of escape from lawful custody under section 123 of the Penal Code. The court also considered the respondent's argument regarding the equivocality of...
Source-derived case information.
- Citation
- [2006] KEHC 1468 (KLR)
- Parties
- Appellant: Moses Hullein Kirimbai; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 186 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- JW Lessit
- Legal Topics
- Sentencing Illegality, Plea Equivocality, Escape From Lawful Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Hullein Kirimbai
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed exceeded the statutory maximum for escape from lawful custody.
- 2 Whether the plea taken was equivocal and irregularly recorded.
Ratio Decidendi
The court found that the sentence of 36 months imprisonment imposed by the trial magistrate was illegal, as it exceeded the statutory maximum of 2 years for the offence of escape from lawful custody under section 123 of the Penal Code. The court also considered the respondent's argument regarding the equivocality of the plea but determined that the appellant's statement did not amount to a defence and the conviction was unequivocal. Consequently, the court allowed the appeal against sentence, set aside the 36-month sentence, and substituted it with a sentence of 2 years imprisonment from the date of the original sentence.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of 36 months imprisonment is set aside.
- The appellant is sentenced to 2 years imprisonment from the date of the original sentence in the lower court.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
Criminal Appeal 186 of 2004
(From Original Conviction and Sentence in Criminal Case No. 1386 of Principal Magistrate’s Court at Kajiado (NDUNG’U H.N. –P.M) on 12. 10. 2004).
MOSES HULLEIN KIRIMBAI
………………..................................................……….APPELLANT
VERSUS
REPUBLIC………………...........................................…………………….………..RESPONDENT
JUDGEMENT
The appellant pleaded guilty to the charge of Escape from lawful custody contrary to Section 123 of the Penal Code. He was sentenced to 3 years imprisonment. He has appealed against the sentence on grounds it was excessive.
Mr. O’mirera for the state asked the court to find that the plea was irregularly taken and declare it equivocal. Mr. O’mirera submitted that after the facts were read to the appellant, his response amounted to a denial of the charge. He urged the court to order a retrial.
The appellants appeal is carefully considered. The appellant submitted that the sentence imposed against him was excessive. That is very true. The sentence is infact illegal as the maximum sentence for the offence charged under section 123 of the Penal Code is 2 years imprisonment.
By imposing 36 months imprisonment, the learned trial magistrate exceeded her jurisdiction.
Mr. O’mirera point was that infact the appellants response to the facts given by the prosecution during plea amounted to a denial. The appellant is recorded to have stated:-
Accused in mitigation:-I did not escape. The door was just opened.”
Given the facts of the case, the appellants statement would not amount to a defence. The facts were he and others overpowered a police officer and escaped. That appellant was facing a serious charge under Section 297(2) of the Penal Code which the appellant admits. The conviction was unequivocal and I would not disturb it.
The appellants appeal against sentence allowed. The sentence of 36 months imprisonment is set aside and in substitute it is reduced to 2 years imprisonment from date of original sentence in lower court.
Dated at Machakos this 31st day of May, 2006.
J. LESIIT
JUDGE