https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10515

Duba alias Badada & another v Republic (Criminal Appeal E006 of 2026) [2026] KEHC 10515 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEHC 10515 (KLR) Republic of Kenya In the High Court at Marsabit Criminal Appeal E006 of 2026 FR Olel, J July 15, 2026 Between Wako Hassan Duba alias Badada 1st Appellant Geri Hassan Dub 2nd Appellant and Republic Respondent (Being An Appeal Arising From The Conviction And Sentence Passed By Hon Edward Oboge (srm), In Marsabit Principal Magistrate Court Criminal Case No E248 Of 2025, Delivered On 9Th February 2026) Judgment A. Introduction 1.The Appellant’s herein, Wako Hassan Duba Alias Badada & Geri Hassan Dub, were charged with the offence of shop breaking and committing a felony, contrary to section 306(a) of the penal code. The particulars were that on diverse dates between 12th day of December 2025 at around 2100hrs to 13th day of December 2025 at around 0900hrs at Arobota village, Mountain location in Marsabit central Sub-County, within Marsabit County, they jointly broke and entered a shop namely Mama Tune General Shop, belonging to JAmes Guyo Igalo and stole therein items as outlined in the inventory dated 13th December 2025, all valued at Kshs.40,000/=. 2.On count II, both Appellants were charged with the offence of handling stolen goods contrary to Section 322(1), (2) of the penal code. The particulars were that on the 15th day of December 2025, at around 2000hrs at Dirib-Gombo location, Marsabit central Sub-county, within Marsabit County, jointly otherwise than in the course of stealing, dishonestly received or retained the following items; namely (1) 13kgs of sugar, (2) 50kgs of rice, (3) 5kgs of wheat flour and 8kgs of maize flour, knowing or having reason to believe them to be stolen goods. 3.The appellant’s took plea on 17th December 2025, and after the charges were read out and explained to them in Borana, they both denied the charge on count I, but admitted the charge on Count II, where a plea of guilty was entered. The prosecution then sort to have the matter mention on the following day to enable them present the exhibits and for facts to be read. When the accused persons appeared in court on 18th December 2025, they both requested to have the charges to be read out to them afresh. Once again, the said charges were read out and they both pleaded guilty on both counts, by stating that, “It is true”. The facts were thereafter read out to both the appellants and the Exhibits produced and once again when asked if the facts were correct, they replied and affirmed that, “The facts are correct”. 4.The appellants were thereafter convicted based on their own admission, and sort for leniency and stated that they would not repeat the said offence. The court did call for a pre-sentence report, which gave negative reviews on both accused and proceed to sentence them to pay a fine of Kshs.50,000/= each and in default to serve a prison term of 7 years imprisonment. 5.The Appellants, being dissatisfied with the said conviction and sentence passed did filed their petition of appeal and raised the following grounds of Appeal;a.That the learned trial Magistrate erred in matters of law and fact by failing to exercise caution or vital safeguards prior to convicting them on their own plea of guilty.b.That the consequence of pleading guilty to the charge was not explained to them.c.That the learned trial Magistrate erred in law and fact in imposing a very harsh and excessive sentence without considering the appellants mitigation, and the circumstance of the case.d.That the learned trail Magistrate erred in both matters of law and fact by failing to note the facts adduced by the prosecution did not disclose an offence, since the chargesheet was in variance with the facts adduced before the court.e.That the learned trail Magistrate erred in both matters of law and fact by failing to Note that the appellants were first offenders hence the sentence passed to them was harsh and excessive in the circumstances of the case. 6.The Appellant’s therefore prayed that his Appeal be allowed, his conviction and sentence be set aside, and he be set free. B. Determination 7.This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence, and/or see their demeanor. This court is guided by various established citations, including Okeno Vs. Republic (1972) E.A 32 & Pandya Vs. Republic (1975) EA 366 & Peter’s vrs Sunday Post (1958) E.A. 424 . 8.Having considered the lower court record, the grounds of appeal, and the submissions filed by the appellants and the state (ODPP), I do find the following as issues for determination; a. Whether the Appellant’s plea of guilty was unequivocal and whether the sentenced passed was harsh/excessive 9.The appellant’s in their petition of appeal challenge both their conviction and sentence. Section 348 of the Criminal Procedure Code expressly bars an appeal from subordinate court where an accused person was convicted upon a plea of guilt, except to the extent that he challenges the legality of the sentence. The said section provides that;“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 and legality of the sentence.” 10.It therefore follows that the appellant’s, by virtue of section 348 of the Criminal Procedure Code, are barred from challenging their conviction, unless they are challenging the extent or legality of the sentence imposed on them by the trial court. Be that as it may, it has been held severally by courts that this bar only operates where the plea is unequivocal. Accordingly, the court is not barred from inquiring as to whether a prima facie plea of guilty was unequivocal or not. Similarly, it does not bar the court from inquiring as to whether the facts as read out to the accused constituted any offence. See Anthony Muthoga Munene Vs Republic {2022} eKLR and Hando s/o Akunaay vrs Rep (1951) EACA 307 where it was held that:“Before convicting on any such plea, it is desirable not only that every Constituent of the charge should be explained to the accused, but that he should be required to admit or deny every such constituent.”“Where an accused person who has been called upon to plead under section 207 of the criminal procedure code in the subordinate admits the charge the proviso to subsection (2) requires the prosecution to outline the facts upon which the charge is founded. The truth or otherwise of the charge is a combination of three things, the charge, the particulars of the offence contained in the charge-sheet or information as the case maybe, as well as the facts outlined where the accused pleads guilty. The facts therefore are as important part of the plea as the charge itself. The nature and element of the offence in totality must be understood by the accused and the trial court must be satisfied about this accepting them as true. 11.Before the trial court, the charge against both the accused was read out to them in a language which understood (Borana), and they both pleaded not guilty on count I and pleaded guilty on Count II. The prosecution requested to have the facts read on the following day, to enable him get the exhibits and when the appellants returned to court, they requested that the charge be read to them again. The charges were read out to them in Kiswahili and they replied in Kiswahili that, “It is true”. 12.The trial court did enter a plea of guilt, and the prosecution then went ahead and read out the summarized facts of the case and produced the Exhibit they relied on to prove their case. The accused, at this stage, again when asked if the facts were corrected, and stated that “The facts are correct.” 13.In the opinion of this court, it is clear that the appellant’s fully understood and agreed with the charges and particulars of the offence as read out to them, and that is why they pleaded guilty on each count, which contained specific offences and had elaborate particulars. After the plea of guilty was entered, the prosecution went ahead and explained the facts to the appellants, and they again admitted that the facts were true. The provisions of Section 207 of the Criminal Procedure Code were thus complied with, and prima facie, the plea of guilty by the appellant was unequivocal. 14.Their Appeal on conviction thus fails. 15.On sentence, after considering the Appellants' mitigation, and the pre-sentence report filed, the trial court sentenced both appellants to pay a fine of Kshs.50,000/= and in default to serve 7 years imprisonment. On the face of it, the said sentence is lawful as that is what it provides for under Section 306(a) of the Penal Code. At this point it is noted that the trial court overlooked and/or forgot to pass a sentence on count II, which too was admitted, but since there is no cross appeal filed by the state on this issue, the court will let it pass. 16.Be that as it may,Sentencing is a discretion of the court, who should look at the facts and the circumstances of the case in its entirety so as to arrive at an appropriate sentence. The Court of Appeal in Thomas Mwambu Wenyi Vs Republic (2017) eKLR cited the decision of the Supreme Court of India in Alister Anthony Pereira Vs State of Maharashtra at paragraphs 70-71 where the court held the following on sentencing:“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence. 17.In Republic vs Scott (2005) NSWCCA 152 Howie J Grove & Barn J J it was stated;“There is a fundamental and immutable principle of sentencing, that is, sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed… one of the purposes of punishment is to ensure that an offender is adequately punished… a further purpose is to denounce the conduct of the offender. 18.The Judiciary sentencing policy guideline also provides that the court, before passing the sentence, must consider the gravity of the offence, aggravating and mitigating circumstances of the offence, and also the criminal history of the accused persons. 19.Having considered the above parameters, the pre-sentence report, which notes numerous complaints from the society, that the appellants are associated with previous thief incidences and the current jurisprudence on sentencing, I do find that though the sentence passed was lawful, the trial court ought to have considered the appellants age ( 20 years ) and should also have noted that this was their first conviction and thus had to find a balance between a deterrent sentence and a chance of rehabilitating the appellants. 20.To that extent, I do agree with the appellants that the sentence passed was harsh and ought to be reconsidered. C. Disposition. 21.This Appeal is therefore partially successful, and the orders that commend themselves are that;(a)The Appellant’s appeal against their conviction fails, and their appeal against the same is dismissed.(b)The Appellant’s appeal against sentence is upheld. The sentence imposed by the trial Magistrate Hon Edward Oboge (SRM) issued in Marsabit SPMCR NO E248 OF 2025 as against the Appellant on 09.02.2025 is set aside and the Appellant is resentenced to pay a fine of Kshs.50,000/= and/or in default to serve a sentence of five (5) years imprisonment.(c)The sentence will start to run from 15th December 2025, when they were arrested, pursuant to provisions of Section 333(2) of the Criminal Procedure Code.(d)Right of Appeal 14 days. 22.It is so ordered. JUDGMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MARSABIT THIS 15TH DAY OF JULY 2026.FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 15th Day Of July 2026.In the presence of;Both in court …………………………… AppellantMburugu………………………….For O.D.P.PJarso …………………………….Court Assistant