[2002] KEHC 680 (KLR)
The court found that the appellants understood the particulars of the charge as the facts were read to them in Kiswahili and they did not object, nor was there evidence of coercion. Their participation in mitigation further indicated comprehension. The conviction was therefore upheld. However, considering the goats...
Source-derived case information.
- Citation
- [2002] KEHC 680 (KLR)
- Parties
- Appellant: Daniel Kioko Kisilu; Appellant: Mwema Mutua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 205 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Conviction upheld; custodial sentence set aside and substituted with community service order.
- Legal Topics
- Plea Taking, Sentencing Principles, Community Service Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kioko Kisilu
Appellant
Mwema Mutua
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellants understood the nature of the offence at plea taking.
- 2 Whether the conviction was proper in light of the plea procedure.
- 3 Whether the custodial sentence imposed was appropriate given the circumstances.
Ratio Decidendi
The court found that the appellants understood the particulars of the charge as the facts were read to them in Kiswahili and they did not object, nor was there evidence of coercion. Their participation in mitigation further indicated comprehension. The conviction was therefore upheld. However, considering the goats were returned to the owner, the appellants were first offenders, and their youth, the court determined that a custodial sentence was inappropriate. The sentence was substituted with a community service order to allow the appellants an opportunity for reform.
Court Disposition
Conviction upheld; custodial sentence set aside and substituted with community service order.
Orders
- The sentence of imprisonment for 3 years and 2 strokes of the cane is set aside.
- The appellants shall serve public service for a period of 3 years under a Community Order pursuant to the Community Service Act.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO.205 ‘A’ OF 2002
DANIEL KIOKO KISILU …………………………………. APPELLANT
VERSUS
REPUBLIC ………………………………………………… RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 205B OF 2002
MWEMA MUTUA ………………………………………….. APPELLANT
VERSUS
REPUBLIC ………………………………………………. RESPONDENT
Being an appeal from Original Conviction and Sentence in Criminal Case No.963 of 2002 of Senior Resident Magistrate’s Court at Kwale –L.N. Mbatia, SRM)
JUDGMENT
The appellants who are represented by Mr. Akanga appeal on the grounds set out in the Petition of Appeal. Firstly Akanga says that the handwritten notes of trial magistrate appear as if she wanted to write “Not True” but in fact wrote “It is true”. This is not disclosed in the typed certified record. The court has to move on the copies which are certified as correct. Secondly he submits that the appellants did not understand the nature of the offence and therefore the plea of Not Guilty should be entered. This means that the appellants would have to go to trial again. He says when they pleaded they were beaten and therefore not able to understand. This submission is not supported by evidence. The perusal of the record shows that the facts were read out to the appellants in Kiswahili language to which they did not object. They spoke in mitigation. I find that they did understand the particulars of the charge and these submissions to the contrary are but an after-thought. I therefore uphold the conviction, but on the question of sentence, it is to be noted that the goats were returned to the owner and these persons are first offenders.
They are also young persons. The custodial sentence is therefore not appropriate. They should be given an opportunity to reform. In the circumstances I set aside the sentence of imprisonment for 3 years and the 2 strokes of the cane. Instead I substitute with a Community Order under the Community Service Act to serve public service for a period of 3 years.
Dated at Mombasa this 18th Day of July, 2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE