[2011] KEHC 2984 (KLR)
The appeal was allowed because the trial magistrate failed to comply with the mandatory plea-taking procedure under section 207 of the Criminal Procedure Code and the guidelines in Aden v. Republic (1973) EA 445. Specifically, the magistrate did not properly and adequately state the facts of the case after the...
Source-derived case information.
- Citation
- [2011] KEHC 2984 (KLR)
- Parties
- Appellant: Cosmas Kipkirong Bett; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 22 of 2010
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- appeal allowed; conviction quashed; sentence set aside; retrial ordered
- Judges
- J Karanja
- Legal Topics
- Plea Taking Procedure, Quashing Conviction, Retrial Order, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cosmas Kipkirong Bett
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the trial magistrate complied with the mandatory plea-taking procedure under section 207 of the Criminal Procedure Code.
- 2 Whether the sentence imposed was unlawful or excessive.
- 3 Whether failure to properly state the facts upon plea of guilt invalidated the conviction.
Ratio Decidendi
The appeal was allowed because the trial magistrate failed to comply with the mandatory plea-taking procedure under section 207 of the Criminal Procedure Code and the guidelines in Aden v. Republic (1973) EA 445. Specifically, the magistrate did not properly and adequately state the facts of the case after the appellant's plea of guilt, instead merely indicating 'Facts as per the charge sheet.' This procedural irregularity rendered the conviction unsafe, necessitating its quashing and the setting aside of the sentence. However, since the charge was not determined on its merits, the court ordered a retrial before a competent court.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; retrial ordered
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CRIMINAL APPEAL NO. 22 OF 2010
COSMAS KIPKIRONG BETT …………………….. APPELLANT
VERSUS
REPUBLIC ………………………………………..RESPONDENT
(Being Appeal against Sentence from Principal Magistrate’s Court at Kapsabet delivered on 5th February, 2010 by Hon. G.M. Mutiso – Resident Magistrate)
J U D G M E N T
Basically, the appeal was on sentence. The appellant was sentenced to serve four years imprisonment on a charge which carries a maximum sentence of fourteen years. Therefore, the sentence was neither unlawful nor excessive for this court to interfere with it.
However, it is notable that the learned trial magistrate failed to comply with the provisions of section 207 C.P.C. and the guidelines provided in the case of AdenVs. Republic (1973)EA 445 with regard to plea – taking. Although the charge was read in a language understood by the appellant in that there was necessary translation from English to Kiswahili, the facts of the case were not properly and adequately stated upon the appellants plea of guilt.
It was in-appropriate for the learned trial magistrate to merely indicate “Facts as per the charge sheet.”
For that reason alone, this appeal is allowed to the extent that the conviction is quashed and the sentence set aside. However, the appellant will be re-tried before another court of competent jurisdiction. Preferably the Chief Magistrate’s Court here in Eldoret.
Ordered accordingly.
J.R. KARANJA
JUDGE
19/5/2011