[2007] KEHC 870 (KLR)
The court held that the sentence of 10 years imprisonment was within the law for the offence of possession of an imitation firearm under section 34(1)(2) of the Firearms Act. The appellant had not provided any evidence that the trial court considered extraneous matters or failed to consider relevant factors in...
Source-derived case information.
- Citation
- [2007] KEHC 870 (KLR)
- Parties
- Appellant: Moses Juma Simiyu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 25 of 2006
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- appeal dismissed; conviction and sentence upheld
- Legal Topics
- Sentencing Principles, Imitation Firearms, Plea of Guilty, Mitigation, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Juma Simiyu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of 10 years imprisonment for possession of an imitation firearm was excessive or unlawful.
- 2 Whether the trial court failed to consider the appellant's mitigation.
Ratio Decidendi
The court held that the sentence of 10 years imprisonment was within the law for the offence of possession of an imitation firearm under section 34(1)(2) of the Firearms Act. The appellant had not provided any evidence that the trial court considered extraneous matters or failed to consider relevant factors in sentencing. The claim that mitigation was not considered was rejected, as the appellant had expressly stated he had nothing to say in mitigation. The appellate court found no legal basis to interfere with the sentence imposed by the trial magistrate and dismissed the appeal, upholding both conviction and sentence.
Court Disposition
appeal dismissed; conviction and sentence upheld
Orders
- The appeal is dismissed.
- The conviction and sentence of the trial court are upheld.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE Criminal Appeal 25 of 2006
MOSES JUMA SIMIYU........................................... APPELLANT
VERSUS
REPUBLIC............................................................RESPONDENT
(Being an appeal from the original conviction and sentence of W.A. Juma – SPM in Criminal Case No. 795/2006 delivered on 1st March, 2006 at Kitale)
J U D G M E N T
This is an appeal against sentence only, as the appellant had pleaded guilty. He had therefore been convicted on his own said plea of guilty, for the offence of being in possession of an imitation firearm contrary to section 34 (1)(2) of the Firearms Act (Cap 114)
The appellant was arrested at Rock Bar, after police officers who were on duty, at about midnight were informed that someone had a gun, at that bar. The police officers rushed to the scene, where they found the appellant.
A search on the appellant revealed an imitation firearm wrapped in polythene, and concealed in his coat.
After confirming the accuracy of the facts giving rise to the offence, the appellant was convicted. Then, when he was given an opportunity to say something in mitigation, the appellant told the court that he had nothing to say.
It is thereafter that he was sentenced to 10 years imprisonment.
At the hearing of his appeal the appellant basically asserted that the sentence meted out against him was too harsh. Interestingly, the appellant accused the learned trial magistrate of having failed to give consideration to his mitigation.
As the appellant had chosen to say that he had nothing to say in his mitigation, he cannot now accuse the trial court of failing to take into account his mitigation.
Having given due consideration to the single issued canvassed by the appellant, I find that the sentence meted out was within the law.
The learned state counsel expressed the view that the trial court ought to have given to the appellant, the minimum sentence prescribed by law. His reason for expressing that view was that the appellant had saved the court’s time, by pleading guilty to the offence.
On my part, I know of no rule that if an accused person did plead guilty, the court should give him the minimum sentence prescribed.
The appellant did not demonstrate to me that the trial court had taken into account some extraneous factors when sentencing him. Also the appellant did not demonstrate to me that the trial court had not taken into account some relevant factor, in the course of handing down the sentence now complained of.
In the circumstances, even if I should feel that a more lenient sentence could have been more deserving, there is no basis, in law, for substituting my own assessment for the discretion exercised by the learned trial magistrate. Accordingly, I find no merit in the appeal. It is therefore dismissed, and I uphold both conviction and sentence.
Dated and Delivered at Kitale, this 9th day of October, 2007.
FRED A. OCHIENG.
JUDGE.