Kiambu High court on Monday upheld a seven year jail term against former Kenya Defence Forces (KDF) soldier after he appealed against an earlier sentence from a lower court.
The court however gave the ex soldier a reprieve by reducing the sentence owing to his continued stay in custody.
Daniel Machua Kangere who had been serving the sentence convicted by a lower court in Thika after it found him guilty for robbery under section 295 on the criminal procedure code. He got a reprieve that the sentence will run from the time he was first arraigned in court.
While delivering the sentence , Kiambu High court Judge Justice Joel Ngugi stated that the appellant had been charged under section 296(1) which provided for a maximum of 14 years imprisonment and that he was convicting on section 296(2) which attracts a death penalty.
Justice Ngugi however noted there is nothing heinous,depraved,deserving,loud societal opprobrium that the appellant did here other the fact he caught himself in that wrong prong and it would be improper to impose any non-custodial sentence.
Consequently, after considering all the factors, Justice Ngugi noted that the 7 year sentence imposed initially was a proportionate sentence for the offence given its gravity and extenuating circumstances.
Particulars are that on 29th March 2014, at Ngoliba village in Thika East, the appellant while armed with a knife, robbed Nancy Njeri of 7,000 shillings, a national identity card,KCPE results slip, a birth certificate, Equity ATM Card and other documents all valued at 500,000 and during the said robbery threatened to use actual violence on the complainant.
Following a fully-fledged trial, the court found that he had a case to answer and put him on his defence. He gave a sworn statement but did not have witnesses in the case in which the prosecution proved a lesser but cognate offence of simple robbery, but not with violence. He was sentenced to serve 7 years to which he was aggrieved by both the conviction and sentence.
After he appealed, the prosecution was also dissatisfied with the reduction of the charge to simple robbery and sought enhancement of the conviction to one of robbery with violence as originally charged and an enhanced sentence of life imprisonment. He was however warned of the possibility that his sentence could be enhanced on appeal but chose to proceed with the appeal, and his lawyer Dennis Ayuo confirmed his choice.
The appellant according to Jane Maari for the prosecution had wasted the court’s time through a fully-fledged trial and should be granted the death penalty.
In mitigation prior to delivery of sentence, Mr.Ayuo said the appellant was and active KDF officer who was on leave and had never been dismissed or had disciplinary issues in the military. He also observed that he had made great sacrifice in defending our nation so that Kenyans can conduct business in a secure environment.
He also was a victim of land mine attack where he narrowly escaped death, was admitted to forces memorial for more than 2 months and which rendered him to be asthmatic. He said he was the sole bread winner and his wife was unemployed and the appellant had since been rehabilitated in prison.
He observed that he had acquired numerous skills including carpentry, upholstery and polishing. He had been converted and was the choirmaster of Kamiti medium Catholic Church after being trained in counselling.
He is now richer in knowledge and now can face life in a positive manner. These skills can be of great help to this county. They ought not to be left to rot in custody but to be expressed and put to test in Nation building.
Given a chance to address the court, the appellant was religious-phylosophical.He quoted Psalms119;67 and 71 to the effect that King David says that before his affliction, he found the Lord. While the appellant has always insisted on his innocence, he says, he now sees that it is through this affliction that God has drawn him from astray into his orbit or righteousness. It was in prison that God found the purpose of life he summed up his mitigation.
Source: Kenya News Agency