[2021] KEHC 5547 (KLR)
The court found that the plea taking process in Ukwala SRM Cr. 308/2019 was fatally defective because, although the applicant admitted the facts, no formal plea of guilty or conviction was entered before sentencing. This procedural irregularity rendered the entire proceedings and the resultant sentence unlawful. The...
Source-derived case information.
- Citation
- [2021] KEHC 5547 (KLR)
- Parties
- Applicant: Erick Ochieng Nyadege; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E071 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Revision
- Outcome
- Application for revision allowed; conviction and sentence quashed; applicant to be released unless otherwise lawfully held.
- Legal Topics
- Plea Taking Irregularities, Conviction and Sentence, Burglary and Stealing, Criminal Procedure, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Ochieng Nyadege
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Revision
Legal Issues
- 1 Whether the plea taking and conviction process in Ukwala SRM Cr. 308/2019 was fatally defective.
- 2 Whether the sentence imposed on the applicant should be set aside due to procedural irregularities.
- 3 Whether a retrial is warranted in the interests of justice.
Ratio Decidendi
The court found that the plea taking process in Ukwala SRM Cr. 308/2019 was fatally defective because, although the applicant admitted the facts, no formal plea of guilty or conviction was entered before sentencing. This procedural irregularity rendered the entire proceedings and the resultant sentence unlawful. The court further held that, given the applicant had already served a substantial part of the sentence and considering the interests of justice, a retrial would not be appropriate. Consequently, the proceedings were quashed, the sentence set aside, and the applicant ordered to be released unless otherwise lawfully held.
Court Disposition
Application for revision allowed; conviction and sentence quashed; applicant to be released unless otherwise lawfully held.
Orders
- The proceedings of 5.8.2019 in Ukwala SRM Cr. 308/2019 are quashed.
- The 3 years imprisonment imposed on the applicant is set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CRIMINAL REVISION CASE NO. E071 OF 2021
ERICK OCHIENG NYADEGE...............................................................................APPLICANT
VERSUS
REPUBLIC.............................................................................................................RESPONDENT
(Application for sentence revision in UKWALA SRM’S MAGISTRATES COURT
NO. 308 OF 2019 on 5. 8.2019 by Hon. C.I. Agutu – Senior Resident Magistrate )
RULING
1. The applicant Erick Ochieng Nyandege is serving 3 years imprisonment for Burglary and Stealing. He was only sentenced on one limb. He is alleged to have pleaded guilty to the charges on 5. 8.2019 before Hon. C.I. Agutu, Senior Resident Magistrate.
2. However, my perusal of the proceedings for that day reveal that after the accused said “Ni Ukweli,” upon facts being read out to him, no plea of guilty was entered against him. Although a plea of guilty was entered only after facts were read out to the applicant, no conviction was entered against him which is a serious irregularity.
3. The accused was a previous offender in Criminal Case Number 188 of 2019 of being in a dwelling house with the intention to commit a felony. That notwithstanding, the plea as taken was fatally defective. It cannot stand. The proceedings of 5. 8.2019 having been irregularly conducted, the same are hereby quashed and the 3 years imprisonment imposed on the applicant is hereby set aside. The applicant has served a substantial part of the sentence as imposed on 5. 8.2019 on one count only.
4. A retrial will not be in the interest of Justice. Therefore, unless otherwise lawfully held, subject to the proceedings in Ukwala Senior Resident Magistrate Criminal 186 of 2019, the applicant shall be set at liberty as far as the proceedings in Ukwala SRM Cr. 308/2019 are concerned.
5. Orders accordingly.
6. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 25TH DAY OF JUNE, 2021
R. E. ABURILI
JUDG