[2004] KEHC 953 (KLR)
The court found that the appellant's plea of guilty was unequivocal as the charge and facts were read to him in a language he understood and he admitted both the charge and the facts. The facts established that the appellant obtained money from the complainant by falsely pretending to sell land and then absconded,...
Source-derived case information.
- Citation
- [2004] KEHC 953 (KLR)
- Parties
- Appellant: Alfred Matoke Obonyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 125 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal on sentence allowed; conviction upheld; custodial sentence set aside and substituted with a fine.
- Judges
- K Bauni
- Legal Topics
- Obtaining by False Pretences, Plea of Guilty, Sentencing Principles, First Offender, Non Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Matoke Obonyo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's plea of guilty was unequivocal.
- 2 Whether the facts supported the charge of obtaining by false pretences.
- 3 Whether the sentence imposed was excessive given the circumstances.
Ratio Decidendi
The court found that the appellant's plea of guilty was unequivocal as the charge and facts were read to him in a language he understood and he admitted both the charge and the facts. The facts established that the appellant obtained money from the complainant by falsely pretending to sell land and then absconded, which satisfied the elements of obtaining by false pretences under section 313 of the Penal Code. However, considering the appellant's plea of guilty, his request for leniency, and his status as a first offender, the court held that the two-year custodial sentence was excessive. The appropriate sentence in the circumstances was a non-custodial sentence, specifically a fine, with...
Court Disposition
Appeal on sentence allowed; conviction upheld; custodial sentence set aside and substituted with a fine.
Orders
- The conviction is upheld.
- The sentence of two years imprisonment is set aside.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA AT KISII CRIMINAL APPEAL NO.125 OF 2004 (From original conviction and sentence of the RM’s court at Rongo in criminal case No.378 of 2004. ) ALFRED MATOKE OBONYO ……………………………………….. APELLANT VERSUS REPUBLIC ……………………………………………………………. RESPONDENT JUDGEMENT: Appellant was convicted for the offence of obtaining by false pretences c/s 313 Penal Code in that on 24th November 2003 at Giasaiga sub-location Gucha District with intent to defraud he obtained from Nyabuto Osinde the sum of shs.19,500/= by falsely pretending to sell a piece of land to him.
He had pleaded guilty to the offence and was jailed for 2 years.
The State Counsel did not object to the appeal. However I find that appellant’s plea was unequivocal. Record shows that the charge was read to him in Kegusii and he answered
“It is true.”
The facts were read to him. He again answered
“The facts are quite correct.”
The facts clearly stated that he had promised to sell a piece of land to the complainant. He was paid sh.19,500/= on 9/12/03. He then went underground up to 26th May 2004 when he was arrested. He did not sell the land to the complainant. That is obtaining money by false pretences.
I find the facts given supported the charge. I therefore uphold the conviction.
As to the sentence he was sent to jail for 2 years. He had pleaded guilty and pleaded for leniency. He was a first offender. Jail term of 2 years was excessive in the circumstances. A non-custodial sentence was warranted.
I therefore set the sentence aside and substitute it with one of a fine of shs.20,000/= in default 6 months imprisonment.
It is so ordered.
KABURU BAUNI JUDGE 28/7/04
Dated and delivered on 27th July 2004.
KABURU BAUNI JUDGE