[1984] KECA 80 (KLR)
The appellant's plea of guilty was unequivocal and confirmed by his acceptance of the prosecution's facts, precluding any appeal against conviction under section 348(1) of the Criminal Procedure Code. The subsequent claim of innocent purchase was an afterthought not raised at trial or in mitigation. The sentence...
Source-derived case information.
- Citation
- [1984] KECA 80 (KLR)
- Parties
- Appellant: David Omuse Odera; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 48 of 1984
- Procedural Posture
- Criminal Appeal / Appeal From Summary Dismissal of First Appeal; Court of Appeal Judgment
- Outcome
- appeal dismissed as to conviction; sentence varied to include hard labour
- Judges
- ARW Hancox
- Legal Topics
- Stock Theft, Plea of Guilty, Sentencing Guidelines, Corporal Punishment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Omuse Odera
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Summary Dismissal of First Appeal; Court of Appeal Judgment
Legal Issues
- 1 Whether the appellant's plea of guilty was unequivocal and bars an appeal against conviction.
- 2 Whether the sentence imposed was lawful and in accordance with section 278 of the Penal Code.
- 3 Whether the appellant's mitigation and grounds for leniency warranted interference with sentence.
Ratio Decidendi
The appellant's plea of guilty was unequivocal and confirmed by his acceptance of the prosecution's facts, precluding any appeal against conviction under section 348(1) of the Criminal Procedure Code. The subsequent claim of innocent purchase was an afterthought not raised at trial or in mitigation. The sentence imposed, while within the statutory minimum, was unlawful to the extent that it omitted the mandatory order for hard labour as required by section 278 of the Penal Code. The court therefore dismissed the appeal on conviction but altered the sentence to seven years' imprisonment with hard labour, maintaining the order for corporal punishment.
Court Disposition
appeal dismissed as to conviction; sentence varied to include hard labour
Orders
- Appeal on conviction dismissed.
- Sentence altered to seven years' imprisonment with hard labour.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT KISUMU
CRIMINAL APPEAL 48 OF 84
DAVID OMUSE ODERA ………………………………… APPELLANT
AND
REPUBLIC …………………………………………………. RESPONDENT
(Appeal from conviction of the High Court of Kenya at Kakamega (Gicheru J) dated 29th November1983 in Criminal Appeal No 372 of 1983)
JUDGEMENT OF THE COURT
When David Omuse Odera, the appellant therein, appeared before an acting Resident Magistrate at Busia on 27th October 1983 and had the charge of stealing stock contrary to section 278 of the Penal Code read and explained over to him he pleaded guilty by admitting that he stole 2 bulls of Erneyo Ojuma. He confirmed his plea by accepting as true the facts narrated by the prosecution. He, was, therefore, properly convicted of the offence and sentenced to the mandatory statutory minimum sentence of 7 years’ imprisonment and ordered to receive 5 strokes of corporal punishment. On 29th November 1983 Mr Justice Gicheru summarily dismissed Omuse’s appeal to the High Court. He has now further appealed to this court on the grounds that he in ignorance and presumable therefore, innocently, purchased the two head of livestock at a public auction and was given a receipt which got lost; he is a polygamist with a very large family of ten members who depend on him as the sole bread winner, he is a first offence and has decided to reform and the sentence is harsh and excessive. He asks this court to quash his conviction and either acquit either him or place him on probation.
The grounds of this appeal in the High Court were that he bought the cattle from his neighbour without knowing that they were stolen and that the sentence imposed was too excessive, more so as the long imprisonment will adversely affect his family to the extent that his children will not get education.
We note that in his plea before the subordinate court and even in mitigation the appellant did not raise the point of buying the two bulls from the unnamed neighbour as he alleges in his grounds of appeal to the High Court. This is an after thought and although his appeal should correctly, have been admitted to hearing in view of that ground, no court would have accepted his belated explanation in the light of his unequivocal plea of guilty to the charge of stock theft. No purpose would, therefore, be served by sending back this appeal to the High Court for admission for hearing.
The appellant’s plea of guilty was unequivocal and as such no appeal lies against the conviction: see section 348(1) of the Criminal Procedure Code.
As to the sentence the offence of stock theft is punishable with imprisonment with hard labour for a term of not less than seven and not more than fourteen years together with corporal punishment. In so far as the sentence passed on the appellant did not include an order for hard labour as required by Section 278 of the Penal Code it is unlawful.
For the reasons stated the appeal on conviction is dismissed, but we alter the sentence only to the extent that the appellant is sentenced to seven years’ imprisonment with hard labour. The order for corporal punishment remains the same. Those shall be the orders of this court.
Dated and delivered at Kisumu this 19th day of June 1984.
A R W HANCOX
…………………………………
JUDGE OF APPEAL
Z R CHESONI
…………………………………
AG JUDGE OF APPEAL
J O NYARANGI
………………………………….
AG JUDGE OF APPEAL
I certify that this is a true copy of the original
………………………………….
DEPUTY REGISTRAR