[2015] KEHC 8431 (KLR)
The court found that the learned magistrate followed the correct procedure for taking a plea as set out in Adan v Republic, and the appellant unequivocally admitted the facts. The charge was not defective as it provided sufficient information for the appellant to understand the case she faced. However, the court...
Source-derived case information.
- Citation
- [2015] KEHC 8431 (KLR)
- Parties
- Appellant: Dolly Anyango Ogutu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 116 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal partially allowed; conviction upheld, sentence reduced.
- Judges
- DAS Majanja
- Legal Topics
- Stealing by Agent, Plea Procedure, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dolly Anyango Ogutu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea of guilty entered by the appellant was unequivocal and valid.
- 2 Whether the charge as drawn was defective for failing to specify how the appellant was an agent.
- 3 Whether the sentence imposed was manifestly harsh or excessive in the circumstances.
Ratio Decidendi
The court found that the learned magistrate followed the correct procedure for taking a plea as set out in Adan v Republic, and the appellant unequivocally admitted the facts. The charge was not defective as it provided sufficient information for the appellant to understand the case she faced. However, the court held that the sentence imposed did not sufficiently consider the appellant's status as a first offender, her plea of guilty, and her role as a victim of a trickster. The court determined that a non-custodial or lesser sentence was appropriate and reduced the term of imprisonment to one year, with the balance to be served under community service.
Court Disposition
Appeal partially allowed; conviction upheld, sentence reduced.
Orders
- The term of imprisonment is reduced to 1 year.
- The appellant shall serve the balance of the sentence under community service.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
CRIMINAL APPEAL NO. 116 OF 2014
(FORMERLY KISII HCCRA NO. 122 OF 2012)
BETWEEN
DOLLY ANYANGO OGUTU ………………………………………………….….APPELLANT
AND
REPUBLIC ………………………………………………………………………..…RESPONDENT
(Being an appeal from the original conviction and sentence in Criminal Case No. 236 of 2012 at the Principal Magistrate’s Court at Rongo, Hon. Z. J. Nyakundi, PM dated on 2ndMay 2012)
JUDGMENT
The appellant, DOLLY ANYANGO OGUTU,was charged with offence of stealing by agent contrary to section 283(b) of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the charge were that on 19th April, 2012 at Nyarach village, Central Kamagambo Location within Migori County, stole Kshs250,114/=, the property of William Ong’wenya Mira which had been entrusted to her.
The appellant pleaded guilty, was convicted and sentenced to 3 years imprisonment. She now appeals against conviction and sentence. In the supplementary grounds of appeal filed by her advocate, she contends that the language used in the proceedings was not definite, that the appellant was not addressed by the learned magistrate on the gravity of the offence and that she pleaded guilty without understanding the nature of the offence she was facing and that the sentence was manifestly harsh and excessive.
Mr Ongoso, learned counsel for the appellant, argued that the guilty plea was not unequivocal and as such it should be setaside. Counsel cited the well-known case of Adan v Republic [1973] EA 445 to support his arguments.
The appeal was opposed by Mr Oluoch, learned counsel for the State. He urged that the plea was unequivocal and that the facts read to the appellant disclosed an offence and that there was no error on the face of the record. As regards the sentence he contended that in view of the maximum sentence of 7 years imprisonment and in light of the amount stolen, the sentence was neither harsh nor excessive.
I have considered the record and it is clear that the learned magistrate followed the procedure set out inAdan v Republic (Supra). The accused responded and accepted the facts as true. I therefore find that the plea was unequivocal.
Mr Ongoso submitted that the charge as drawn was defective in that it did not specify how the appellant was an agent. The charge as drawn is consistent with the form set out in the second schedule to the Criminal Procedure Act(Chapter 75 of the Laws of Kenya). The charge sets out the name of the principal and the amount stolen which is sufficient information to enable the appellant know the case she is facing. I therefore dismiss this ground.
As regards the sentence, this court can only interfere with the sentence if it is manifestly harsh or excessive or that the magistrate took into account irrelevant factors or failed to take into account relevant factors. In this case, the appellant was a first offender and as the facts disclose, she was a victim of some trickster. She also pleaded guilty. In considering the sentence the court must take into account the moral blameworthiness of the accused. Had this fact been taken into account, the learned Magistrate would have at least considered the possibility of a non-custodialor lesser sentence.
Upon reconsideration of the sentence, I reduce the term of imprisonment to 1 year but the appellant shall serve the balance of the sentence under community service. She is set free forthwith unless otherwise lawfully held.
DATEDandDELIVEREDat HOMA BAY this 20th day of March 2015.
D.S. MAJANJA
JUDGE
Mr Ongoso instructed by Ayoma Ongoso and Company Advocates for the appellant.
Mr Oluoch, Senior Assistant Director of Public Prosecutions, instructed by the Office of Director of Public Prosecutions for the respondent.