[2014] KEHC 4607 (KLR)
The court found that the plea of guilty was properly taken, with all essential ingredients explained to the appellant and the facts accepted as correct. The presence of a court clerk ensured proper interpretation. Although the sentences imposed were within the statutory limits, the court determined that they were...
Source-derived case information.
- Citation
- [2014] KEHC 4607 (KLR)
- Parties
- Appellant: Darren Mbithi Kalunda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 263 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; sentence reduced to period already served.
- Judges
- BT Jaden
- Legal Topics
- Plea of Guilty, Sentence Appeal, House Breaking, Escape From Lawful Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Darren Mbithi Kalunda
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea of guilty was properly taken and all procedures followed.
- 2 Whether the sentence imposed was legal and proportionate given the circumstances.
Ratio Decidendi
The court found that the plea of guilty was properly taken, with all essential ingredients explained to the appellant and the facts accepted as correct. The presence of a court clerk ensured proper interpretation. Although the sentences imposed were within the statutory limits, the court determined that they were harsh and excessive in the circumstances. Exercising its discretion, the court reduced the sentences to the period already served, considering the appellant's mitigation and the nature of the offences.
Court Disposition
Appeal allowed in part; sentence reduced to period already served.
Orders
- The sentences imposed in both counts are reduced to the period already served.
- The appellant shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
CRIMINAL APPEAL NO. 263 OF 2013
DARREN MBITHI KALUNDA.................................APPELLANT
VERSUS
REPUBLIC
(Being an appeal from the conviction and sentence of Hon. R. Rator Resident Magistrate
delivered on 24/9/2012 in Makueni Principal Magistrate Criminal Case No. 368 of 2012)
************************************
(Before Hon. B. Thuranira Jaden J)
J U D G M E N T
1. The Appellant, Darren Mbithi Kalunda was charged in count I with House breaking contrary to section 304 (1) and stealing from a dwelling house contrary to section 279 (b) of the Penal Code.
The particulars of the offence were that on the 29th day of March 2012 at Unoa village, Wote Location of Makueni District of Makueni Countybroke and entered into a dwelling house of Ziphorah Mwikali Muia with intent to steal therein and did steal therein a phone makeIdeos, a bag, one pair of men’s shoes, DVD machine make Philips, woofer make Digitek, DVD/T.V screen make Sony, Digital camera, Sony cash Kshs.5,000, Nokia E65 and Blackberry phone all valued at Kshs.60,000/= the property of the said Ziphorah Mwikali Muia.
In count II the Appellant was charged with the offence of escape from lawful custody contrary to section 123 as read with section 36 of the Penal Code.
The particulars of the offence were that on the 18th day of April 2012 at Makueni Police Station in Makueni District within Makueni County being in lawful custody of PC (W) Bahati and PC Maina escaped from the said custody.
2. The charges were read out to the Appellant and all the essential ingredients explained to him and he pleaded guilty in all the counts. The interpretation is reflected as English, Kiswahili and Kikamba. The facts were read out and the Appellant accepted the same as correct. The trial court followed all procedures of plea taking [See Adan –vs- Republic 1973 EA 445].
3. The record reflects that there was a court clerk in court. The Appellant participated in the trial and even mitigated. As held by the Court of Appeal in the case of Said Hassan Nuno v Republic [2010] eKLR- Nyeri Criminal Appeal 322 of 2006:-
“We take judicial notice that one of the core duties of a court clerk is to offer interpretation services to accused or even to the court where it does not understand the language of the accused; or a witness to the case.”
4. Section 348 of the Criminal Procedure Code provides as follows:-
“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.”
5. In the 1st count the Appellant was sentenced to seven (7) years imprisonment in the 1st limb and ten (10) years in the 2nd limb. In the 2nd count the Appellant was sentenced to serve two (2) years imprisonment. Sentences were to run concurrently.
6. Although the sentence in each count is within the law, the same is harsh and excessive. Consequently, I am persuaded to reduce the same to the period already served.
..................................
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 28thday of May 2014.
.................................
B. THURANIRA JADEN
JUDGE