[2010] KEHC 2423 (KLR)
The court held that the appellant was barred from appealing against conviction by section 348 of the Criminal Procedure Code since he pleaded guilty, and the grounds raised did not fall within the exceptions recognized by law. However, the sentence of four years imposed by the trial court was illegal as it exceeded...
Source-derived case information.
- Citation
- [2010] KEHC 2423 (KLR)
- Parties
- Appellant: Alfred Kiboi Chemei; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 110 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal against conviction dismissed; appeal against sentence allowed.
- Judges
- FN Muchemi
- Legal Topics
- Plea of Guilty, Right of Appeal, Sentencing Illegality, Stealing Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Kiboi Chemei
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant can appeal against conviction after pleading guilty.
- 2 Whether the sentence imposed exceeded the statutory maximum under section 275 of the Penal Code.
- 3 Whether the sentence was harsh and excessive in the circumstances.
Ratio Decidendi
The court held that the appellant was barred from appealing against conviction by section 348 of the Criminal Procedure Code since he pleaded guilty, and the grounds raised did not fall within the exceptions recognized by law. However, the sentence of four years imposed by the trial court was illegal as it exceeded the statutory maximum of three years under section 275 of the Penal Code. The court therefore set aside the illegal sentence and substituted it with a sentence of one and a half years, which had already been served, resulting in the appellant's release.
Court Disposition
Appeal against conviction dismissed; appeal against sentence allowed.
Orders
- Conviction upheld.
- Sentence of four years set aside as illegal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
Criminal Appeal 110 of 2008
ALFRED KIBOI CHEMEI::::::::::::::::::::::APPELLANT
~VRS~
REPUBLIC::::::::::::::::::::::RESPONDENT
(Appeal arising from SRS RM CR. NO.273 of 2008)
JUDGMENT
The Appellant Alfred Kiboi Chemei was convicted on his own plea of guilty by Sirisia Resident Magistrate of the offence of stealing contrary to section 275 of the Penal Code and sentenced to four (4) years in jail.He now appeals against conviction and sentence.
The appeal on conviction was opposed by the state on grounds that section 348 of the Criminal Procedure Code bars the Appellant from appealing since he pleaded guilty to theoffence.The state conceded to the appeal against sentence in that it was too harsh and excessive going beyond the maximum allowed by the law.
I entirely agree with the state that the Appellant is barred from appealing againstconviction by section 348 of the Criminal Procedure Code.The grounds he has raised condemn the trial magistrate for failing to appreciate that there was no enough proof of theft and that no exhibits were produced.Such grounds cannot be entertained in an appeal of this nature bearing in mind the provisions of sections 348. The Court of Appeal has ruled that section 348 is not an absolute bar to appeal.The kind of issues which may be entertained concern the manner in which the plea was taken or whether any constitutional rights were violated.This is not the issue here and for this reason, I uphold the conviction.
The maximum sentence under section 275 of the Penal Code is three years.The sentence of four (4) years in jail was illegal and is hereby set aside.The prosecutor said the Appellant was a first offender.The property stolen was 100kg of coffee valued at Ksh.5,000/=.The Appellant ought to have been given a lenient sentence.I impose a sentence of one and half years which has now been fully served bearing in mind that he was convicted on 5/11/2008. The Appellant is therefore set at liberty unless otherwise lawfully held.
F. N. MUCHEMI
JUDGE
Judgment delivered and datedthis 16th day of June, 2010 in the presence of the Appellant and the State Counsel Mrs. Leting.
F. N. MUCHEMI
JUDGE