[2008] KEHC 1993 (KLR)
The court found that the trial court failed to comply with the mandatory requirement of reading out the facts of the case after the appellant entered a plea of guilty. Instead, the prosecutor merely stated 'facts as per charge sheet,' which is contrary to established legal principles as articulated in OMBENA VS....
Source-derived case information.
- Citation
- [2008] KEHC 1993 (KLR)
- Parties
- Appellant: Christantu Makori Nyamanya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 109 of 2008
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Judges
- DK Musinga
- Legal Topics
- Bail Pending Appeal, Plea of Guilty, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christantu Makori Nyamanya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending appeal.
- 2 Whether the plea of guilty was unequivocal and properly taken.
- 3 Whether failure to read out facts after plea invalidates the conviction.
Ratio Decidendi
The court found that the trial court failed to comply with the mandatory requirement of reading out the facts of the case after the appellant entered a plea of guilty. Instead, the prosecutor merely stated 'facts as per charge sheet,' which is contrary to established legal principles as articulated in OMBENA VS. REPUBLIC [1981] KLR 450. This procedural irregularity rendered the conviction questionable and gave the appeal high chances of success. Consequently, the court exercised its discretion to grant bail pending appeal, as the threshold of a potentially successful appeal was met.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The appellant is released on his personal bond of Kshs.5000 with one surety of a similar sum, to be approved by the court's deputy registrar.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII Criminal Appeal 109 of 2008
CHRISTANTU MAKORI NYAMANYA ….......…… APPELLANT
VERSUS
REPUBLIC ……………………………………… RESPONDENT
(From original conviction and sentence in Senior Resident
Magistrate’s Court Keroka Criminal Case No.928 of 2007
by Hon. Oduor Esq., S.R.M)
RULING
The appellant was convicted on his own plea of guilty to a charge of stealing by servant contrary to section 281 of the Penal Code. He was sentenced to two years’ imprisonment. He was aggrieved by the said sentence and preferred an appeal to this court. The appellant also filed an application for bail pending appeal.
The application was made on grounds that the appeal herein has high chances of success and that the appellant is a sickly man.
Mr. Kemo, Senior Principal State Counsel, opposed the application for bail pending appeal. He submitted that the appeal had no chances of success since the plea of guilty was unequivocal. He further submitted that no exceptional circumstances had been shown to exist so as to warrant the appellant’s release on bail.
Regarding the appellant’s health, Mr. Kemo submitted that no medical evidence was adduced by the appellant.
The trial court record shows that immediately after the plea was taken, the prosecutor did not read out the facts of the case. The prosecutor simply told the court – “facts as per charge sheet.” In HELLEN NYABOKE GETANGE, Criminal appeal No.16 of 2008 at Kisii (unreported), this court cited the Court of Appeal decision in OMBENA VS. REPUBLIC [1981] KLR 450 where it was held that reading of facts after entry of a plea of guilty was a mandatory step in Criminal Proceedings. The court emphatically stated that it is an error for a prosecutor to fail to read out the full facts of the case and simply state: “facts as per charge sheet.”
In view of the above holding which applies to this matter, I am persuaded that the appeal herein has high chances of success.
Consequently, I allow the application and order that the appellant be released on his personal bond of Kshs.5000/= with one surety of a similar sum. The surety will be approved by this court’s deputy registrar.
DATED, SIGNED and DELIVEREDat KISII this 30th day of July, 2008.
D. MUSINGA
JUDGE
Delivered in open court in the presence of:
Mr. Momanyi for the Appellant
Mr. Kemo, Senior Principal State Counsel for the Republic.
D. MUSINGA
JUDGE