[2001] KEHC 309 (KLR)
The High Court found that the sentence imposed by the trial magistrate was lawful and within the statutory limits, as there was no evidence of previous imprisonment for a felony relating to property. The magistrate had considered the appellant's personal circumstances, including his family responsibilities. The...
Source-derived case information.
- Citation
- [2001] KEHC 309 (KLR)
- Parties
- Appellant: Mutunga Kaloki Mwanzwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 220 of ??
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_partially_allowed
- Legal Topics
- Sentencing Principles, 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
Mutunga Kaloki Mwanzwa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed under Section 308(2) of the Penal Code was lawful and appropriate.
- 2 Whether the trial court exercised its discretion correctly in sentencing the appellant.
Ratio Decidendi
The High Court found that the sentence imposed by the trial magistrate was lawful and within the statutory limits, as there was no evidence of previous imprisonment for a felony relating to property. The magistrate had considered the appellant's personal circumstances, including his family responsibilities. The appellate court held that there was no error in principle or consideration of irrelevant matters by the trial court. However, the High Court exercised its discretion to vary the sentence by substituting the remainder of the custodial sentence with a Community Order Service, thereby partially allowing the appeal on sentence.
Court Disposition
appeal_partially_allowed
Orders
- The appellant shall serve the remainder of his sentence under Community Order Service instead of imprisonment.
Full Case Text
Judgment text and source record
7 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA APPELLATE SIDE CRIMINAL APPEAL NO. 220 OF 2000 (Being an Appeal from Original Conviction and Sentence in Criminal Case No.1148 of 1999 of the Resident Magistrate’s Court at Voi –E.N. Maina-SRM) MUTUNGA KALOKI MWANZWA …………………….. APPELLANT VERSUS REPUBLIC ………………………………………………... RESPONDENT J U D G E M E N T
Appellant was charged with the offence under S.308 (2) of the Penal Code being preparation to commit a felony. He was sentenced to (3) three years together with hard labour. He today appeals against this sentence having abandoned his appeal against conviction. The sentence provided for under this Section 308(2) of the Penal Code is provided under S.308 (4) of the same and it is imprisonment for five years with hard labour. It is 10 years if he had previously been imprisoned for felony relating to property. There was no such evidence. So the sentence awarded was correct. It is not excessive nor illegal.
Appellant has pleaded that he is married with 5 children and looks after all including his sisters. However the learned magistrate took into consideration all this. On appeal the principle upon which this court directs itself is that the discretion of the trial Court remains undisturbed unless that Court erred in principle and or left out relevant or considered irrelevant matters, or that the sentence was too excessive or too low. Here I see nothing to fault the Senior Resident Magistrate’s award of sentence but I however would vary the jail term by placing appellant in Community Order Service to serve the remainder of the period he is to serve under the same order. Appeal is allowed to that extent.
Delivered in open Court on this 12th Day of July, 2001. A.I. HAYANGA
JUDGE