[2018] KEHC 7454 (KLR)
The court held that it lacked discretion to reduce the sentence below the statutory minimum of 7 years as provided by section 308(1) of the Penal Code. The appellants, having abandoned their appeal against conviction and only seeking leniency in sentencing, could not benefit from a reduction since the law mandates a...
Source-derived case information.
- Citation
- [2018] KEHC 7454 (KLR)
- Parties
- Appellant: Silvanus Omwande; Appellant: Patrick Moi Asembo; Appellant: Francis Jomo Perl; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 27, 28 & 29 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- DAS Majanja
- Legal Topics
- Preparation to Commit Felony, Sentencing Guidelines, Robbery With Violence, Penal Code Section 308
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silvanus Omwande
Appellant
Patrick Moi Asembo
Appellant
Francis Jomo Perl
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed under section 308(1) of the Penal Code is lawful and subject to reduction by the court.
- 2 Whether the appellants are entitled to a reduction of sentence based on time already served.
Ratio Decidendi
The court held that it lacked discretion to reduce the sentence below the statutory minimum of 7 years as provided by section 308(1) of the Penal Code. The appellants, having abandoned their appeal against conviction and only seeking leniency in sentencing, could not benefit from a reduction since the law mandates a minimum sentence. The appeal was therefore dismissed as the sentence imposed was lawful and proper.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
(CORAM: MAJANJA J.)
CRIMINAL APPEAL NO. 27,28 & 29 OF 2014
BETWEEN
SILVANUS OMWANDE...........................................................1ST APPELLANT
PATRICK MOI ASEMBO........................................................2ND APPELLANT
FRANCIS JOMO PERL..........................................................3RD APPELLANT
AND
REPUBLIC...................................................................................RESPONDENT
(Being an appeal from the original conviction and sentence of Hon. P.Achieng’, PM delivered on 4th March 2014 at the Kakamega Chief Magistrate’s Court in Criminal Case No. 1033 of 2012)
JUDGMENT
1. The appellants SILVANUS OMWANDE, PATRICK MOI ASEMBO and FRANCIS JOMO PERL were convicted of the offence of preparation to commit a felony contrary to section 308 (1) of the Penal Code (Chapter 63 of the Laws of Kenya) and each sentenced to serve 7 years’ imprisonment. They appealed against conviction and sentence.
2. At the trial, the appellant faced several counts of robbery with violence hence before the appeal commenced, the appellants’ were duly warned that if indeed they were found guilty of the offence of robbery with violence, the state would seek enhancement of the sentence. The appellants abandoned their appeal conviction and each urged the court to be lenient on the sentence as they had served considerable time in prison.
3. As regards the sentence, section 308(1) of the Penal Code provides a minimum of 7 years’ imprisonment and a maximum of 15 years’ imprisonment. The court has no discretion to lower the sentence in the matter.
4. The appeal is dismissed.
DATED and DELIVERED at KAKAMEGA this 4th day of April 2018.
D.S. MAJANJA
JUDGE
Appellants in person.
Mr Ng’etich, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions for the respondent.