[2009] KEHC 2651 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI

Criminal Appeal 157 of 2008

CHARLES NDERITU KARIUKI ............................. APPELLANT

VERSUS

REPUBLIC ……….…………………………....... RESPONDENT

(Appeals from original Conviction and Sentence of the Senior Principal Magistrate’s Court at Nanyuki in Criminal Case No. 600 of 2008 dated 30th June 2008 by Ndungu H. N. – Ag. S.P.M.)

J U D G M E N T

The appellant was on 17th March 2008 arraigned before the Senior Principal Magistrate’s Court at Nanyuki on one count of preparation to commit a felony contrary to section 308 (3) (b) of the Penal Code whose particulars thereof were that on the 5th March 2008 at Nanyuki town in Laikipia District within Rift Valley Province, he was found in a building namely a shop of Eunice Mwangi at night with intent to commit a felony to wit shop breaking.

The appellant pleaded guilty to the charge and a plea of guilty was subsequently entered by the learned magistrate. The facts were then led. The facts being fairly short, it will not do harm if they are reproduced in extenso.

“On 15th March 2008 at Nanyuki town the watchman to the complainant was on duty guarding Wama Hardware at night when he saw 3 men including the accused enter the corridor of said Wama. He followed them closely and discovered they intended to commit theft. He raised alarm & with help of area guards arrested accused. Other disappeared (sic). Police called, visited scene. Accused charged as (sic) before court.”

The appellant on being asked whether the facts as narrated by the prosecutor were correct, the appellant confirmed as much. Pursuant to that admission, the learned magistrate convicted the appellant on his own plea of guilty. The prosecutor then told the court to treat the appellant as a first offender. Called upon to mitigate, the appellant stated that he had a wife and a child. The learned magistrate then considered whether to place the appellant on probation. For that purpose she called for a probation officer’s report. When it was eventually availed, it was found to be negative. It is then that the learned magistrate proceeded to impose 7 years imprisonment on the appellant.

The appellant was aggrieved by the sentence imposed. He therefore proceeded to lodge the instant appeal limited to sentence only. In his petition of appeal, the appellant lamented:-

“1. That I had pleaded guilty to the charge.

2. That the learned trial magistrate misdirected herself in imposing such a harsh and oppressive sentence in regard I am a person of good character whilst evidence of good character is admissible in respect to section 56 of the Evidence Act.

3. That the imposed sentence of 7 years is harsh and excessive if and whether it was satisfactorily meant for rehabilitation purposes.

4. That the decided and considered sentence is invalid and illegal in regard the learned trial magistrate upheld the evidence and acts adduced by the probation officer as adequate to satisfy such a stiff sentence whilst the same evidence lacked enough facts to support the same.

5. That the learned trial magistrate erred in law in not finding that my constitutional and fundamental rights were already violated before being taken to court since I had been detained in the police custody more (sic) that the stipulated time required by law.

6. That the imposed sentence of 7 years is harsh and wholly unjustified since I am a family man and only their bread winner and this necessitated a lesser deter.”

At the hearing of the appeal, Mr. Mukura, learned Senior State Counsel conceded to the appeal on sentence stating that the sentence imposed was illegal and in any event the facts led by the prosecution did not support the offence charged.

As for the appellant, he submitted that the sentence imposed was harsh and excessive. That he had reformed and learnt some skills that he would use to his advantage if and when he rejoins the society upon release.

There is no denying that the sentence imposed on the appellant of 7 years imprisonment for the offence charged was illegal. The maximum sentence permissible for that kind of offence under the Penal Code is imprisonment with hard labour for 5 years. On that ground alone this appeal ought to be allowed.

However there is more! The facts as led by the prosecution did not disclose an offence as correctly submitted by Mr. Makura. The offence charged was preparation to commit a felony. From the particulars of the charge, one would have expected that the prosecution would lead facts that would show that the appellant was found in a shop owned by Eunice Mwangi at night in circumstances suggesting that he was in there to commit a crime, namely, shop breaking. However the facts led merely showed that the appellant in the company of the two others entered a corridor of Wama Hardware at night. The watchman guarding the said shop then followed and discovered that they intended to commit theft. He raised alarm and the appellant was arrested whereas those with him as aforesaid escaped. These facts do not show that the appellant entered a shop belonging to Eunice Mwangi. Indeed all that the appellant and his team did was to enter a corridor belonging to Wama Hardware. Passing through a corridor of a building cannot be said with the wildest of imagination that one is preparing to commit a crime. There are no facts that the appellant was armed with anything suggestive of his intention to commit a crime. Once the watchman saw the appellant enter the corridor, he followed him and his colleagues closely and discovered that they intended to commit theft. There are no facts that informed the watchman’s conclusion aforesaid. According to the charge sheet, the offence intended to be committed by the appellant was shop breaking. However according to the watchman, the offence intended was theft. Clearly the facts stated are at variance with the charge sheet.

Taking all the foregoing into account, it is apparent that the appellant’s plea was not unquivocal. He admitted to facts that did not support the charge preferred. Accordingly he was prejudiced. I would in the circumstances allow the appeal, quash the conviction and set aside the sentence imposed. The appellant should forthwith be set at liberty unless otherwise lawfully held.

Dated and delivered at Nyeri this 30th day of June 2009

M. S. A. MAKHANDIA

JUDGE