[2010] KEHC 1477 (KLR)
The court found that the appellant's plea of guilty was unequivocal, as the charge was read and explained in a language he understood, and he responded affirmatively both to the charge and to the facts. The facts as read out disclosed the offence of theft, and the appellant's acceptance of those facts confirmed his...
Source-derived case information.
- Citation
- [2010] KEHC 1477 (KLR)
- Parties
- Appellant: Daniel Joseph Kinyanjui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 219 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal against conviction dismissed; appeal against sentence allowed.
- Legal Topics
- Plea of Guilty, Sentencing Principles, Stealing, Penal Code Section 275
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Joseph Kinyanjui
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's plea of guilty was unequivocal and properly recorded.
- 2 Whether the facts as read out disclosed the offence of theft under section 275 of the Penal Code.
- 3 Whether the sentence imposed was manifestly harsh and excessive.
Ratio Decidendi
The court found that the appellant's plea of guilty was unequivocal, as the charge was read and explained in a language he understood, and he responded affirmatively both to the charge and to the facts. The facts as read out disclosed the offence of theft, and the appellant's acceptance of those facts confirmed his guilt. The conviction was therefore proper. However, the imposition of the maximum sentence was deemed harsh and excessive, as the circumstances did not warrant such severity and the appellant had pleaded guilty, saving judicial time. The sentence was thus reduced to twelve months' imprisonment.
Court Disposition
Appeal against conviction dismissed; appeal against sentence allowed.
Orders
- Conviction is confirmed.
- Original sentence of three years imprisonment is set aside.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Criminal Appeal 219 of 2010
DANIEL JOSEPH KINYANJUI ................... APPELLANT
VERSUS
REPUBLIC ........................................... RESPONDENT
JUDGEMENT
The Appellant DANIEL JOSEPH KINYANJUI has filed this appeal contesting his conviction and sentence by the learned Senior Resident Magistrate sitting at Mombasa Law Courts. The Appellant faced a charge of STEALING CONTRARY TO SECTION 275 OF THE PENAL CODE. He pleaded guilty to the offence when the charges were read out to him on 19th March 2010. MR. MAGOLO, counsel for the Appellants submits that the plea was not unequivocal. This is because the accused merely responded “It is true” I do not agree with learned counsel that the Appellant was merely commenting on the correctness of the charge. The record clearly indicates that the charge was read over and explained to the Appellant in Kiswahili a language he understood and he responded “It is true” meaning it is true that he stole. Even if I do grant that his response could have been interpreted in another way, the facts were read out to the Appellant as required by law. To the facts he responded Daniel Joseph Kinyanjui v Republic [2010] eKLR “The facts are correct” This is a clear statement that the Appellant accepted the correctness of the facts as read out to him. Mr. Magolo submits that the facts as read out did not disclose the offence of theft. With respect I do not agree. At page 2 line 2 the facts read as follows “The complainant suspected that the accused was the one who had stolen the money” The Appellant here is being accused of having stolen the money in question. His response that the facts are correct confirm that indeed he did steal the money. In my view the facts were clear and unambiguous. The Appellant gave a clear and unequivocal response and was convicted on his own plea of guilty. The fact that the Appellant in mitigation asked the court for forgiveness only serves to underscore his plea of guilty. Why seek forgiveness if he did not commit the offence? I find that the Appellant’s plea of guilty was properly recorded. I find no ambiguity either in the facts or said plea. His conviction was proper and I do confirm the same. With respect to sentence the Appellant was sentenced to serve three (3) years in prison which is the maximum sentence for this offence. MR. ONSERIO learned State Counsel did concede this appeal with respect to sentence. As a general rule the maximum sentence should be reserved for the worst possible manifestation of any offence. That can certainly not be said to have been the case here. The trial magistrate ought to have taken into account the fact that the Appellant pleaded guilty thereby saving the court from an unnecessary trial. In my view the 3 year maximum sentence was manifestly harsh and excessive in the circumstances. I therefore set aside this 3 year sentence and substitute a term of twelve (12) months imprisonment. Dated and Delivered in Mombasa this 13th day of September 2010.
M. ODERO
JUDGE
Read in open court in the presence of:-
Mr. Magolo for Appellant
Mr. Muteti for State
M. ODERO
JUDGE
13/09/2010