[2008] KEHC 3946 (KLR)
The court found that the particulars of the charge disclosed the offence of burglary under section 304(2) of the Penal Code, rather than breaking into a building with intent to commit a felony under section 304C. The appellant, being a first offender, should not have received the maximum sentence in the absence of...
Source-derived case information.
- Citation
- [2008] KEHC 3946 (KLR)
- Parties
- Appellant: Adan Gamo Osman; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 420 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- JB Ojwang
- Legal Topics
- Plea of Guilty, Sentencing Principles, First Offender, Burglary Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Adan Gamo Osman
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea of guilty was valid and voluntary.
- 2 Whether the sentence imposed was appropriate for a first offender convicted of burglary.
- 3 Whether the particulars of the charge matched the offence for which the appellant was convicted.
Ratio Decidendi
The court found that the particulars of the charge disclosed the offence of burglary under section 304(2) of the Penal Code, rather than breaking into a building with intent to commit a felony under section 304C. The appellant, being a first offender, should not have received the maximum sentence in the absence of aggravating circumstances. The court held that the sentence imposed by the trial magistrate was excessive and improper. Exercising its powers under section 354 of the Criminal Procedure Code, the court set aside the ten-year sentence and substituted it with a sentence of three years' imprisonment, effective from the date of the original sentence. The appeal was allowed to that...
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of ten years' imprisonment is set aside.
- The appellant is sentenced to three years' imprisonment from the date of the original sentence.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
(Coram: Ojwang, J.)
CRIMINAL APPEAL NO. 420 OF 2006
BETWEEN
ADAN GAMO OSMAN……….………. APPELLANT
-AND-
REPUBLIC…………..…………….…RESPONDENT
(An appeal from sentence imposed by Resident Magistrate D.A. Orimba on 10th August, 2006 in Criminal Case No. 753 of 2006 at Garissa Law Courts)
JUDGEMENT
The appellant was charged with the offence of breaking into a building with intent to commit a felony contrary to s.304C of the Penal Code (Cap.63, Laws of Kenya). The charge specified that the appellant, on 9th August, 2006 at about 3. 00 a.m., at Madogo Village, Madogo Location in Tana River District, in Coast Province, broke into and entered a building, being the dwelling house of one Abdi Somo Huko,with intent to commit a felony therein.
When the charge was read over to the accused in Kiswahili, and interpreted for him in the Somali language, a language that he understands, he pleaded guilty and, after a record had been taken of this fact, the prosecutor read out the pertinent facts; and the same went as follows.
On 8th August, 2006 at about 3. 00 pm., the complainant was asleep at his residence in Muroro Village, when he was awakened by the noise accompanying a commotion. The complainant noticed that his door was open, and the security lock was no longer in place. When he checked the house, his eyes fell upon the appellant, who was right inside the complainant’s house. He raised the alarm, and members of the public came, and arrested the appellant herein. The devices used in corrupting the complainant’s security lock, were found in the appellant’s pocket, and they were now produced in Court as exhibits. The appellant was taken to the Police station, and a charge preferred against him.
To the foregoing facts, the appellant responded: “The facts are correct.” The Court convicted him on his own plea of guilty; the prosecutor asked that he be treated as a first offender; the appellant herein prayed for mercy. The learned Magistrate thus rendered sentence:
“Accused pleaded guilty to the charge. He is a first offender. I have considered the mitigation offered by [the] accused. I have also considered the nature of the offence before the Court. Accused is …sentenced to serve 10 years’ imprisonment.”
The appellant comes on appeal contending as follows:
that, his “guilty” plea was the result of torture by the arresting officers;
that, he pleaded guilty simply because he was sick and tired;
that, the sentence imposed was “too harsh”;
that, the appellant is the sole bread-winner of his family and for his aged parents who would suffer while he is away in prison.
All the applicant said, in prosecution of his appeal, was that this was the first time he was found guilty of an offence; and he prayed for forgiveness.
Learned State Counsel Mrs. Gakobo submitted that though the appellant had been charged with the offence of breaking into a building, with intent to commit a felony contrary to s.304 C of the Penal Code (Cap.63), the particulars as specified disclosed instead, the offence of burglary contrary to s.304(2) of the Penal Code.
Counsel urged that while the appellant was not prejudiced, as he pleaded guilty, the sentence awarded, which is the maximum for burglary, would have been inappropriate for a first offender. No reason had been given for such an extreme sentence, and so, counsel urged, it was improper to impose the same. Counsel invoked s.354 of the Criminal Procedure Code as empowering this Court to vary the sentence and impose a more fitting penalty.
I am in agreement with learned counsel, that a maximum sentence was improper for a first offender. I will set aside the said sentence, and substitute it with a sentence of three years’ imprisonment, as from the date when the original sentence was imposed. To that extent, the appeal is allowed.
Orders accordingly.
DATED and DELIVERED at Nairobi this 16th day of April, 2008.
J.B. OJWANG
JUDGE
Coram: Ojwang, J.
Court Clerk: Huka
For the Respondent: Mrs. Gakobo
Appellant in person