[2014] KEHC 4808 (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 the facts were admitted as correct. The conviction was therefore lawful. However, while the sentence of five years imprisonment for each count of stealing was within...
Source-derived case information.
- Citation
- [2014] KEHC 4808 (KLR)
- Parties
- Appellant: Darren Mbithi Kalunda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 260 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal on sentence allowed; sentence reduced to period already served.
- Judges
- BT Jaden
- Legal Topics
- Plea of Guilty, Sentencing Principles, Stealing Offences, Appeal on Sentence
- 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 the conviction was lawful.
- 2 Whether the sentence imposed was harsh and excessive in the circumstances.
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 the facts were admitted as correct. The conviction was therefore lawful. However, while the sentence of five years imprisonment for each count of stealing was within the law, the court considered the cumulative effect and circumstances, finding the sentence harsh and excessive. Exercising its discretion, the court reduced the sentence to the period already served, holding that justice would be served by such reduction.
Court Disposition
Appeal on sentence allowed; sentence reduced to period already served.
Orders
- The sentences of five years imprisonment on each count 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
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. 260 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. 373 of 2012)
************************************
(Before Hon. B. Thuranira Jaden J)
J U D G M E N T
The Appellant, Darren Mbithi Kalunda was charged with five counts as follows:-
Count I:- Stealing contrary to section 275 of the Penal Code.
The particulars of the offence were that on the 31st day of August 2012 at Full Gospel Church, Wote Location in Makueni District of the Makueni County stole one DVD make L.G., one remote control make LG all valued at Kshs. 4,500/= the property of Ann Wamuyu Nyaga.
Count II:- Stealing contrary to section 275 of the Penal Code.
The particulars of the offence were that on the 31st day of August 2012 at Full Gospel Church Wote, Unoa Sub-location, Wote Location in Makueni District of the Makueni County stole one mobile phone make Samsungvalued at Kshs.10,700/=, cash 5,700 the property of Pauline Nduku Kitivo.
Count III:- Stealing contrary to section 275 of the Penal Code.
The particulars of the offence were that on the 31st day of August 2012 at Full Gospel Church Wote, Unoa Sub-location in Makueni District of the Makueni County, stole one mobile phone make Nokia E 71 valued at Kshs.3,500/= the property of Solomon Musyoki.
Count IV:- Stealing contrary to section 275 of the Penal Code.
The particulars of the offence were that on the 31st day of August 2012 at Full Gospel Church Wote, Unoa Sub-location, Wote Location in Makueni District of the Makueni County, stole one mobile phone make Inova and cash Kshs.150/= all valued at Kshs.2,150 the property of Alex Muinde Saina.
Count V:- Stealing contrary to section 275 of the Penal Code.
The particulars of the offence were that on the 31st day of August 2012 at Full Gospel Church Wote, Unoa Sub-location, Wote Location in Makueni District of the Makueni County, stole a mobile phone make Itel valued at Kshs.6,000/= the property of Justus Wambua Mutune.
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].
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 as follows:-
Count I:- Five (5) years imprisonment.
Count II:- Five (5) years imprisonment.
Count III:- Five (5) years imprisonment.
Count IV:- Five (5) years imprisonment.
Count V: Five (5) years imprisonment.
Sentence is being served 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