M W v Republic [2017] KEHC 9730 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NUMBER 208 Of 2015.

BETWEEN

M W...............................................APPELLANT.

AND

REPUBLIC................................RESPONDENT.

(An appeal from the original conviction and sentence in the Chief Magistrate’s court at Makadara Cr. Case No. 4397 of 2014 delivered by Hon.Olwande, PM on 21st August 2015).

JUDGMENT.

Background.

M W, the Appellant herein was the second accused in the trial having been jointly charged with the offence of preparation to commit a felony contrary to Section 308(1) of the Penal Code. The particulars of the offence were that on 17th September, 2014 at Mathare 3C within Starehe Sub-County within Nairobi County were found armed with dangerous weapons namely knives in circumstances that indicated that they were so armed with the intent to commit a felony namely robbery. The Appellant was found guilty and sentenced to 7 years imprisonment. His co-accused was acquitted.

By a petition of appeal filed on 17th December, 2015 the Appellant preferred the appeal against both the conviction and sentence. But when the appeal was canvassedon 17th October, 2017 the Appellant submitted that he was only appealing against the sentence. He submitted that he was currently only 20 years of age and being a young man who could go out and lead a better life, it would be disappointing if he died in prison. He also told the court that his co-accused persuaded him to tell the court that he was then aged 21 years when in fact he was under age.

Ms. Sigei, for the Respondent, submitted that the Appellant was sentenced to the minimum sentence provided by the law of seven years imprisonment which she said was lenient. With regard to the Appellant’s age she submitted that he did not inform the court that he was below 18 years of age when he was charged. She urged the court to dismiss the appeal.

In reply, the Appellant submitted that he was cheated to lie that he was an adult and that he also did not get remission for the sentence. He urged the court to intervene.

Section 308(1) of the Penal Code provides:

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 fifteen years. (emphasis mine).

Ineed not belabor to restate that the provision is couched in mandatory terms in so far as providing a minimum penalty. The court cannot vary the minimum penalty provided by the law. Thus the trial magistrate did not err in sentencing the Appellant to seven years imprisonment which was very reasonable. However, considering the facts of this case and further taking into account that the Appellant is a young man, was a first offender and for purposes of serving justice, I order that he has served sufficient sentence. I accordingly set aside the sentence and order that he be forthwith set free.

Dated And Delivered at Nairobi This 7th November, 2017.

G.W.NGENYE-MACHARIA

JUDGE.

In the presence of;

1. Appellant in person.

2. ……………. for the Respondent.