[2017] KEHC 3785 (KLR)
The court found that the sentence imposed on the appellant was the statutory minimum under Section 308(1) of the Penal Code, which prescribes a minimum of seven years imprisonment for preparation to commit a felony. The court held that it had no discretion to reduce the sentence below the statutory minimum. However,...
Source-derived case information.
- Citation
- [2017] KEHC 3785 (KLR)
- Parties
- Appellant: Robert Musyoka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 54 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- AW Macharia
- Legal Topics
- Preparation to Commit Felony, Sentencing Minimums, Remission of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Musyoka
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant for preparation to commit a felony was lawful and reasonable.
- 2 Whether the appellant was entitled to benefit from the period spent in custody during trial and remission.
Ratio Decidendi
The court found that the sentence imposed on the appellant was the statutory minimum under Section 308(1) of the Penal Code, which prescribes a minimum of seven years imprisonment for preparation to commit a felony. The court held that it had no discretion to reduce the sentence below the statutory minimum. However, the appellant was entitled to benefit from the period spent in custody during trial and from remission as provided by prison regulations. The court ordered that the sentence should run from the date the appellant took the plea, thereby accounting for time already served in custody. The appeal against sentence was dismissed as lacking merit.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The sentence of seven years imprisonment shall run from 8th December, 2014, the date on which the appellant took the plea.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO. 54 OF 2016
ROBERT MUSYOKA……………..……………………… APPELLANT
VERSUS
REPUBLIC…………………………………………….. RESPONDENT
(Being an appeal from the original conviction and sentence in the Chief Magistrate’s Court at Kibera Cr. Case No. 5534 of 2014 delivered by Hon. J. Kamau (RM) on 23rd March, 2016)
JUDGEMENT
Robert Musyoka, the Appellant herein was charged with the offence of preparation to commit a felony contrary to Section 308(1) of the Penal Code. It was alleged that on the 6th December, 2014 at around 1. 30 a.m., at Nkoroi Ongata Rongai Township within Kajiado County with another not before court was found armed with dangerous weapons namely; a metal bar and a knife in circumstances that indicated that he was so armed with the intent to commit a felony namely stealing.
After the trial the Appellant was found guilty and convicted accordingly. He was sentenced to serve seven years imprisonment. Being dissatisfied with both the conviction and sentence, he preferred the present appeal. In his grounds of appeal filed on 2nd March, 2017, he appealed against both the conviction and the sentence. At the hearing of the appeal in court, he submitted that he would only appeal against the sentence. He urged the court to take into account that the sentence having been passed on 23rd March, 2016, he has been in prison for a period of more than one year. For the period the trial was going on, he remained in custody because he could not afford the bond terms. In addition, he urged the court to consider that he was a young man aged 28 years married with one child. He also took care of his two younger siblings. He also pleaded that he was sick after a fall that injured his back.
Learned State Council Ms. Kimiri in opposing the appeal noted that the sentence imposed was the minimum which this court could not vary. Therefore, the Appellant could only benefit from the period he remained in custody during the trial. Furthermore, prisons give remission of sentences which he shall also benefit from.
I have accordingly considered the respective submissions. Under Section 108(1) of the Penal Code any person found armed with any dangerous or offensive weapon in circumstances that indicate that he was so armed with intent to commit any felony is guilty of a felony and is liable to imprisonment of not less than seven years and not more than 15 years. Accordingly, the sentence imposed was the minimum provided by the law and therefore, reasonable. I thus concur with the learned State Counsel that the Appellant in this appeal can only benefit both from the period he remained in custody during the trial and by the remission offered by the prison.
In the upshot, i find and hold that the appeal has no merit and the Appellant must serve the minimum sentence passed. However, the said sentence shall run from 8th December, 2014 the date on which he took the plea. The appeal is accordingly dismissed.
DATEDand DELIVEREDthis 17thday of July, 2017.
G. W. NGENYE – MACHARIA
JUDGE
In the presence of:
1. Appellant in person
2. M/s Sigei for the Respondent.