[2021] KEHC 1722 (KLR)
The court found that the sentence of 2 years imprisonment imposed on the applicants for preparation to commit a felony was not excessive, given the statutory minimum of 7 years and maximum of 15 years under Section 308(1) of the Penal Code. Although the Community Service Order Officer recommended a non-custodial...
Source-derived case information.
- Citation
- [2021] KEHC 1722 (KLR)
- Parties
- Applicant: Moses Muriithi; Applicant: Josphat Mutethia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E222 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application for revision of sentence declined
- Judges
- EM Muriithi
- Legal Topics
- Sentencing Principles, Preparation to Commit Felony, Non Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Muriithi
Applicant
Josphat Mutethia
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence of 2 years imprisonment for preparation to commit a felony was excessive and warranted revision to a non-custodial sentence.
- 2 Whether the gravity of the offence and the circumstances justified a deterrent custodial sentence.
Ratio Decidendi
The court found that the sentence of 2 years imprisonment imposed on the applicants for preparation to commit a felony was not excessive, given the statutory minimum of 7 years and maximum of 15 years under Section 308(1) of the Penal Code. Although the Community Service Order Officer recommended a non-custodial sentence, the court held that the gravity of the offence and the circumstances, including the applicants being armed with a dangerous weapon with intent to commit robbery with violence, required a deterrent custodial sentence. The absence of an appeal by the prosecution on the leniency of the sentence meant the court would not disturb the sentence, but it declined to revise it to...
Court Disposition
application for revision of sentence declined
Orders
- The application for revision of the sentence is declined.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL REVISION CASE NO. E222 OF 2021
MOSES MURIITHI................................................................................1ST APPLICANT
JOSPHAT MUTETHIA.........................................................................2ND APPLICANT
VERSUS
REPUBLIC..................................................................................................RESPONDENT
RULING
1. The accused was on 25th March 2021 convicted and sentenced to 2 years imprisonment for the offence of “Preparation to commit a felony” under Section 308 (1) of the Penal Code. The particulars of offence were that the accused persons were jointly found armed with a dangerous weapon namely a dagger (Somali sword) in circumstances that indicated that they were so armed with the intent to commit a felony namely robbery with violence to one Julius Kirimi.
2. The Community Service Order Officer recommends non-custodial sentence for the remainder of the sentence. The DPP opposed the revision citing the gravity of the offence and the lack of remorse on the part of the accused.
3. The Court agrees that the gravity of the offence and the circumstances of the same require a deterrent sentence. The sentence of imprisonment for 2 years is not excessive against the possible maximum of 15 years and minimum of 7 years prescribed for the offence of preparation to commit a felony under Section 308 (1) of the Penal Code. It would appear that the appropriate sentence was the minimum of 7 years, but as there is no appeal by the Prosecution on the sentence, this Court will not disturb it.
ORDERS
4. Accordingly, for the reasons set out above, the revision of the sentence is declined.
Order accordingly.
DATED AND DELIVERED THIS 25TH DAY OF NOVEMBER 2021.
EDWARD M. MURIITHI
JUDGE
Appearances:
Moses Muriithi, the 1st Applicant in person.
Josephat Mutethia, the 2nd Applicant in person.
Ms Nandwa, Prosecution Counsel for the Respondent.