[2014] KEHC 4708 (KLR)
The court found that the plea of guilty was properly taken, with all procedures and interpretation requirements satisfied. The appellant participated in the trial and mitigated. However, while the sentences imposed were within the statutory limits, the court considered them harsh and excessive in the circumstances....
Source-derived case information.
- Citation
- [2014] KEHC 4708 (KLR)
- Parties
- Appellant: Darren Mbithi Kalunda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 264 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced to period already served; appellant to be released unless otherwise lawfully held
- Judges
- BT Jaden
- Legal Topics
- House Breaking, Plea of Guilty, Sentence Appeal, Interpretation Services, Criminal Procedure, Mitigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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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/or excessive.
Ratio Decidendi
The court found that the plea of guilty was properly taken, with all procedures and interpretation requirements satisfied. The appellant participated in the trial and mitigated. However, while the sentences imposed were within the statutory limits, the court considered them harsh and excessive in the circumstances. Exercising its discretion, the court reduced the sentence to the period already served, finding that justice would be better served by such reduction.
Court Disposition
sentence reduced to period already served; appellant to be released unless otherwise lawfully held
Orders
- The sentences imposed by the trial court are set aside and substituted with a sentence of the period already served.
- The appellant shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. 264 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. 364 of 2012)
************************************
(Before Hon. B. Thuranira Jaden J)
J U D G M E N T
The Appellant, Darren Mbithi Kalunda was charged 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 8th day of September 2012 at about 7. 00 p.m. at Westlands Estate, Unoa Sub-location, Wote Township, Wote Location in Makueni County, broke and entered into a dwelling house of Victoria Murugi Kivuti with intent to steal from therein and did steal there in one DVD player make LG, remote control, one C.D and cash Kshs. 2,500/= all valued at Kshs. 6,700/= the property of the said Victoria Murugi Kivuti.
The charge was 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].
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.”
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.”
The Appellant was sentenced to fourteen (14) years imprisonment in the 1st limb and ten (10) years in the 2nd limb. The sentences were to run concurrently.
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