[2002] KEHC 403 (KLR)
The court found that the sentence of 7 years imposed on the appellant for the offence of preparing to commit a felony was illegal as it exceeded the statutory maximum of 5 years provided under Section 308(2) of the Penal Code. Considering the appellant's plea of guilty and the circumstances of the offence, the court...
Source-derived case information.
- Citation
- [2002] KEHC 403 (KLR)
- Parties
- Appellant: Peter Ochieng Aora; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 441 of 1999
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced
- Legal Topics
- Sentencing, Plea of Guilty, Preparing to Commit Felony
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ochieng Aora
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant exceeded the statutory maximum for the offence of preparing to commit a felony.
- 2 Whether the sentence should be reduced in light of the appellant's plea of guilty and the circumstances of the offence.
Ratio Decidendi
The court found that the sentence of 7 years imposed on the appellant for the offence of preparing to commit a felony was illegal as it exceeded the statutory maximum of 5 years provided under Section 308(2) of the Penal Code. Considering the appellant's plea of guilty and the circumstances of the offence, the court exercised its powers under Section 354(3)(b) of the Criminal Procedure Code to reduce the sentence to 4½ years, to run from the date the original sentence was passed by the trial court. The appeal was allowed only to the extent of reducing the sentence to the lawful maximum.
Court Disposition
sentence reduced
Orders
- The sentence is reduced to 4½ years to run from the time sentence was passed by the trial court.
- The appeal succeeds to the extent of the reduction of sentence only.
Full Case Text
Judgment text and source record
8 paragraphs
IN THE HIGH COURT OF KENYA AT MOMBASA APPELLATE SIDE CRIMINAL APPEAL NO. 441 OF 1999 (From Original Conviction and Sentence in Criminal Case No. 3400 of 1999 of the Chief Magistrate’s Court at Mombasa –B. Maloba –S.R.M.)
PETER OCHIENG AORA ….………………………………. APPELLANT - VERSUS - REPUBLIC …..……………………………………………. RESPONDENT
J U D G E M E N T
The Appellant was charged together with another and convicted for the offence of preparing to commit a Felony contrary to Section 308 (2) of the Penal Code. He was sentenced to serve 7 years on his own plea of guilty. He now appeals against sentence. The facts of the case are that on the 23. 10. 99 at about 6. 30 p.m. PC Anthony Wanjau PW1, who was in the company of PC Muge Abdi PW2, were on patrol duties at Mishomoroni are when they saw some people standing in a dark place. They surrounded and caught them and on searching them found the appellant in possession of a Toy Pistol. They failed to give a satisfactory answer as to why they were hiding and in possession of the Toy Pistol.
In his appeal, the Appellant pleads for mercy saying he has learned his lesson and will not repeat the same. The State Counsel supported the conviction but said the sentence is illegal and urged the court in exercise of its powers under Section 354(3)(b) of the Criminal Procedure Code to apply the correct sentence. The Maximum sentence provided for is 5 years with hard labour. I have considered the circumstances of the offence and the plea of guilty. In the circumstances I reduce the sentence to 4½ years to run from the time sentence was passed by the trial court. The appeal shall succeed to that extent only.
Dated and Delivered at Mombasa this 23rd day of August, 2002.
P.M. TUTUI
COMMISSIONER OF ASSIZE