[2014] KEHC 4800 (KLR)
The court found that the plea of guilty was properly taken, with all essential ingredients explained to the appellant in languages he understood, and that the appellant participated in the proceedings, including mitigation. However, while the sentences imposed were within the law, the court determined that they were...
Source-derived case information.
- Citation
- [2014] KEHC 4800 (KLR)
- Parties
- Appellant: Darren Mbithi Kalunda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 262 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed to the extent of sentence reduction; sentence reduced to period already served.
- Judges
- BT Jaden
- Legal Topics
- House Breaking, Plea of Guilty, Sentencing, Interpretation of Proceedings
- 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 explained to the appellant.
- 2 Whether the sentence imposed was lawful, harsh, or excessive.
Ratio Decidendi
The court found that the plea of guilty was properly taken, with all essential ingredients explained to the appellant in languages he understood, and that the appellant participated in the proceedings, including mitigation. However, while the sentences imposed were within the law, the court determined that they were harsh and excessive under the circumstances. Exercising its discretion, the court reduced the sentence to the period already served, thereby allowing the appeal only to the extent of sentence reduction.
Court Disposition
Appeal allowed to the extent of sentence reduction; sentence reduced to period already served.
Orders
- The sentences in both counts are reduced to the period already served.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. 262 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. 365 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 18th day of August 2012 at 5. 30 p.m. at Makueni High School, Unoa Sub-location, Wote Location in Makueni District of the Makueni County, broke and entered in to a dwelling house of Erustus Kimetu Musyoki with intent to steal from therein and did steal there in one DVD Make GLD, a pair of brown shoes, 3 mobile phones, T.V. remote GLD and cash Kshs.10,000/= all valued at Kshs.20,000/= the property of Erustus Kimetu Musyoki.
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 seven (7) years imprisonment in the 1st limb and ten (10) years in the 2nd limb.
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