[2006] KEHC 3246 (KLR)
The court found that the sentence of death imposed by the lower court was illegal because section 296(1) of the Penal Code does not prescribe the death penalty for robbery with violence. The learned magistrate had mistakenly imposed a sentence applicable to section 296(2). The High Court exercised its revisionary...
Source-derived case information.
- Citation
- [2006] KEHC 3246 (KLR)
- Parties
- Appellant: Safari John Ngotho; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 353 of 2005
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- sentence varied
- Legal Topics
- Sentencing Error, Robbery With Violence, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Safari John Ngotho
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the sentence of death imposed for a conviction under section 296(1) of the Penal Code was lawful.
- 2 Whether the sentence should be revised to reflect the correct statutory penalty.
Ratio Decidendi
The court found that the sentence of death imposed by the lower court was illegal because section 296(1) of the Penal Code does not prescribe the death penalty for robbery with violence. The learned magistrate had mistakenly imposed a sentence applicable to section 296(2). The High Court exercised its revisionary jurisdiction to set aside the illegal sentence and substituted it with a lawful sentence of five years imprisonment, effective from the date of the original sentence.
Court Disposition
sentence varied
Orders
- The sentence of death imposed by the lower court is set aside.
- The appellant is sentenced to five years imprisonment to run from 19th December 2005.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Revision No. 353 of 2005
SAFARI JOHN
NGOTHO…………................................................…………………ACCUSED
VERSUS
REPUBLIC…………………………….............................................…………..PROSECUTOR
RULING
This is a revision relating to Mombasa Chief Magistrate’s Court Criminal Case No. 795 of 2005.
Safari John Ngotho was in that case charged with the offence of robbery with violence contrary to section 296(1) of the Penal Code. He pleaded not guilty to charge. After trial he was convicted and sentenced to death. That is an illegal sentence. Having perused the lower court sentence I am satisfied that the learned Senior Resident Magistrate who tried the case inadvertently imposed that sentence thinking he was dealing with an offence under section 296(2). In the circumstances I set aside that sentence and substitute therefor a sentence of five (5) years imprisonment to run from the 19th December 2005.
DATED and delivered this 13th day of February 2006.
D. K. MARAGA
JUDGE