[2023] KEHC 3969 (KLR)
The court found that the sentence imposed by the trial court was harsh and excessive given the appellant's voluntary surrender of the imitation firearm, his status as a first offender, the absence of any use of the toy firearm to threaten or scare anyone, and his plea of guilty. These mitigating factors warranted a...
Source-derived case information.
- Citation
- [2023] KEHC 3969 (KLR)
- Parties
- Appellant: Kioko Nzue; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E040 of 2022
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- GMA Dulu
- Legal Topics
- Sentencing Principles, Possession of Imitation Firearm, Plea of Guilty, Mitigation Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kioko Nzue
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed for possession of an imitation firearm was harsh and excessive in the circumstances.
- 2 Whether the appellant's voluntary surrender and plea of guilty warranted a reduction of sentence.
Ratio Decidendi
The court found that the sentence imposed by the trial court was harsh and excessive given the appellant's voluntary surrender of the imitation firearm, his status as a first offender, the absence of any use of the toy firearm to threaten or scare anyone, and his plea of guilty. These mitigating factors warranted a reduction of the sentence to the period already served. The court exercised its discretion to set aside the original sentence and ordered the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal_allowed_in_part
Orders
- The appeal on sentence is allowed.
- The sentence imposed by the trial court is set aside.
Full Case Text
Judgment text and source record
20 paragraphs
Nzue v Republic (Criminal Appeal E040 of 2022) [2023] KEHC 3969 (KLR) (4 May 2023) (Judgment)
Neutral citation: [2023] KEHC 3969 (KLR)
Republic of Kenya
In the High Court at Makueni
Criminal Appeal E040 of 2022
GMA Dulu, J
May 4, 2023
Between
Kioko Nzue
Appellant
and
Republic
Respondent
(From the conviction and sentence in Criminal Case No. E261 of 2021 at Kilungu Law Court by Hon. E. Muiru – PM)
Judgment
1. The Appellant was convicted on 3rd June, 2021 on his own plea of guilty to a charge of being in possession of imitation firearm contrary to Section 34(1) of the Firearms Act (Cap 114). He was sentenced to pay a fine of Kshs. 300,000/= and in default to serve 4 years imprisonment. He thereafter filed this appeal against both conviction and sentence on 21st March, 2022. In his submissions however, he has stated that he wants this court to consider reviewing the sentence only.
2. The learned Prosecution Counsel has left the matter of sentence to the court to decide, as the appellant surrendered the imitation pistol to the village elders on his own volition. I note that the appellant was not able to pay the fine. I am also aware that sentencing is an exercise of discretionary power by a trial court.
3. In my view, in the circumstances of this case wherein the appellant surrendered the item voluntarily to the authorities, was a first offender, had not used the toy firearm to scare anybody, and pleaded guilty, the sentence imposed by the trial court was harsh and excessive. I will thus reduce the sentence to that already served.
4. I thus allow the appeal on sentence. I set aside the sentence imposed and order that the appellant will instead serve the prison sentence served todate. The appellant will thus be released from custody unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED THIS 4TH DAY OF MAY, 2023 VIRTUALLY FROM VOI.GEORGE DULUJUDGEIn the presence of:-Mwendwa Court AssistantAppellantMr. Kazungu for the state.