[2014] KEHC 6795 (KLR)
The trial court imposed a sentence of three years imprisonment for possession of an imitation firearm without a firearm certificate, contrary to section 34(1) of the Firearms Act. However, the law prescribes a mandatory minimum sentence of seven years. The High Court, exercising its revisionary jurisdiction under...
Source-derived case information.
- Citation
- [2014] KEHC 6795 (KLR)
- Parties
- Respondent: Republic; Appellant: Alexander Mutiso Peter
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 475 of 2012
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- sentence revised to statutory minimum
- Judges
- BT Jaden
- Legal Topics
- Sentencing, Firearms Offences, Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Alexander Mutiso Peter
Appellant
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the sentence imposed by the trial court was lawful under the Firearms Act.
- 2 Whether the High Court should revise the sentence to comply with statutory minimums.
Ratio Decidendi
The trial court imposed a sentence of three years imprisonment for possession of an imitation firearm without a firearm certificate, contrary to section 34(1) of the Firearms Act. However, the law prescribes a mandatory minimum sentence of seven years. The High Court, exercising its revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code, found the sentence illegal for failing to meet the statutory minimum. The court held that, in such circumstances, it is empowered to revise the sentence to comply with the law, even without hearing the accused, as provided by the proviso to section 364(2). Accordingly, the sentence was revised to seven years imprisonment to...
Court Disposition
sentence revised to statutory minimum
Orders
- The sentence of three years imprisonment is set aside and substituted with a sentence of seven years imprisonment.
- Right of appeal within 14 days.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL REVISION NO. 475 OF 2012
REPUBLIC
VERSUS
ALEXANDER MUTISO PETER …………………………….… APPELLANT
RULING ON REVISION
The Applicant, Alexander Mutiso Peter, was convicted and sentenced to three years imprisonment for the offence of being in possession of an imitation firearm without a firearm certificate contrary to section 34 (1) of the Firearm Act Cap 114 Laws of Kenya.
The particulars of the offence were that on the 28th of December 2011 at around 13. 40 Hours at Sofia Estate of Athi River District within the Eastern Province the Appellant was found in possession of an imitation firearm namely a toy pistol without a firearm certificate with intent to commit a criminal offence.
On 26/10/2013, the Applicant applied for the sentence to be reviewed under section 362 and 364 of the Criminal Procedure Code.
Under section 362 of the Criminal Procedure Code, the High Court has powers to call for the lower court records for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any such proceedings.
I have examined the record of the lower court. The only illegality that I have noted is on sentence. The penalty provided by section 34 (1) of the Firearms Act Cap 114 Laws of Kenya is imprisonment for a term not less than seven years but not exceeding fifteen years.
Section 364 (2) of the Criminal Procedure Code provides as follows:-
“No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence.
Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
The trial court imposed a sentence of three years when it was required by the law that a sentence of not less than seven years imprisonment be passed. Consequently, I revise the sentence to read seven years imprisonment. Right of Appeal 14 days.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 24thday of February 2014.
………………………………………
B. THURANIRA JADEN
JUDGE