[2017] KEHC 7931 (KLR)
The court found that the facts narrated by the prosecutor in support of the charges were vague and failed to disclose the offences preferred against the appellant. The facts did not indicate what the appellant had done to constitute the offence, nor did they show how or why he was arrested. As such, the trial...
Source-derived case information.
- Citation
- [2017] KEHC 7931 (KLR)
- Parties
- Appellant: Andrew Kiprop Kosgei; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 109 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- CW Githua
- Legal Topics
- Stock Theft, Plea of Guilty, Conviction Safety, Sentencing, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Kiprop Kosgei
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's plea of guilty was unequivocal and could sustain a conviction.
- 2 Whether the facts as stated by the prosecutor disclosed the essential ingredients of the offence of stock theft.
- 3 Whether the sentence imposed was excessive in the circumstances.
Ratio Decidendi
The court found that the facts narrated by the prosecutor in support of the charges were vague and failed to disclose the offences preferred against the appellant. The facts did not indicate what the appellant had done to constitute the offence, nor did they show how or why he was arrested. As such, the trial magistrate erred in law by convicting the appellant on facts that did not disclose the offences charged. The court held that a plea of guilty must be unequivocal and based on facts that clearly disclose the offence. Since this standard was not met, the convictions were unsafe and could not be allowed to stand. The appeal was allowed, the convictions quashed, and the sentences set aside.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The conviction in each count is quashed.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CRIMINAL APPEAL NO. 109 OF 2010
ANDREW KIPROP KOSGEI ……………......APELLANT
VERSUS
REPUBLIC ………………………….........RESPONDENT
(An Appeal from the Judgment of the Chief Magistrate Honourable C. G MBOGO in Eldoret Criminal Case No. 3832 of 2010 dated 14th July, 2010)
JUDGMENT
1. The appellant Andrew Kiprop Kosgei was charged jointly with another in two counts of stock theft contrary to Section 278 of the Penal Code.
2. In count 1, it was alleged that on 9th May, 2010 at Nzoia forest, the appellant jointly with another stole one calf valued at Kshs. 8,000 the property of Joseph Kemboi.
3. In count 2, it was alleged that between the night of 9th and 10th May, 2010, the appellant jointly with another stole one cow valued at Kshs.
25,000 the property of Willy Kiptoo.
4. On 7th July 2010, the appellant was convicted on his own plea of guilty in both counts and was sentenced to five years imprisonment in each count. The sentences were ordered to run concurrently.
5. The appellant was dissatisfied with his conviction and sentence. He lodged an appeal to this court vide a petition of appeal dated 20th July 2010. He raised three grounds of appeal which are as follows;-
(i)That the learned trial magistrate erred in law in convicting him on an unequivocal plea of guilty.
(ii) That the learned trial magistrate erred in law in convicting him for the offence of stock theft when the facts stated by the prosecutor did not disclose the essential ingredients of the offence.
(iii)That the sentence of five years imprisonment imposed on each count was excessive in all the circumstances of the case.
6. At the hearing of the appeal on 26th January 2017, the appellant who was unrepresented made brief oral submissions to the effect that he was wrongly convicted mainly because his plea of guilty was not unequivocal.
7. The state did not oppose the appeal. Learned prosecuting counsel Mr. Mulati conceded to the appeal primarily on grounds that the facts read to the appellant were vague because they alleged that someone was seen driving away the calf and as there were two accused persons, it was not clear who among them was seen driving away the calf; he relied on the persuasive authority of Joseph Mburu Muhia V Republic Criminal Appeal No. 569 of 2004 (2007) eKLR.
8. I have carefully considered the grounds of appeal, the proceedings before the lower court, the brief submissions made by the appellant and the state as well as the authority cited by Mr. Mulati.
Having done so, I agree with the learned state counsel that the facts narrated by the prosecutor in support of the charges in the two counts were so vague that they did not disclose the offences preferred against the appellant.
9. The facts only indicated how the calf and cow were stolen but they failed to disclose what the appellant had done which constituted the offence charged. The facts did not even show how or why the appellant had been arrested. In a nutshell, the facts did not connect the appellant with the commission of the offences charged. In the premises, the learned trial magistrate erred in law when he entered a conviction on facts which did not disclose the offences charged.
In my view, it is immaterial that the appellant stated that the facts were true because given the facts that were availed to the court, it is not clear what he was admitting as true.
10. For a conviction based on a plea of guilty to be sustained, the plea of guilty must be unequivocal. This means that an accused person must have pleaded to facts which clearly disclosed the offence he was charged with. I therefore agree with the appellant that he was wrongly convicted in this case. It is thus my finding that the convictions on each count are unsafe and cannot be allowed to stand. The learned Prosecuting Counsel was right in conceding to the appeal.
The appeal is consequently allowed. The conviction in each count is hereby quashed and the sentences set aside. The appellant shall be set at liberty forthwith unless otherwise lawfully held.
It is so ordered.
C.W GITHUA
JUDGE
DATED, SIGNEDand DELIVEREDatELDORETthis 9th day of February 2017
In the presence of:
The appellant,
Ms. Mutheu for the Republic,
Mr. Lobolia Court Clerk.