[2011] KEHC 2303 (KLR)
The court found that the procedure for taking the plea was fundamentally flawed. The magistrate failed to enter a conviction after the facts were read and admitted by the accused, as required by law. The celebrated case of Adan v Republic (1973) E.A 445 sets out the proper procedure: a conviction can only be entered...
Source-derived case information.
- Citation
- [2011] KEHC 2303 (KLR)
- Parties
- Appellant: Festus Nyakoe Manyara; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 15 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held.
- Legal Topics
- Plea Taking Procedure, Conviction Requirements, Sentencing Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Festus Nyakoe Manyara
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly convicted before sentence was imposed.
- 2 Whether the plea taken was unequivocal as required by law.
Ratio Decidendi
The court found that the procedure for taking the plea was fundamentally flawed. The magistrate failed to enter a conviction after the facts were read and admitted by the accused, as required by law. The celebrated case of Adan v Republic (1973) E.A 445 sets out the proper procedure: a conviction can only be entered after the accused admits both the charge and the facts. Since this did not occur, there was no valid conviction to support the sentence imposed. The procedural irregularity rendered the conviction and sentence a nullity, warranting the quashing of the conviction and setting aside of the sentence.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held.
Orders
- The appeal is allowed.
- Conviction quashed.
Full Case Text
Judgment text and source record
28 paragraphs
No. 2801
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CRIMINAL APPEAL NO. 15 OF 2011
FESTUS NYAKOE MANYARA …………………..…… APPELLANT
-VERSUS-
REPUBLIC ………………………..…………………... RESPONDENT
9/5/2011
Before Asike-Makhandia J.
Nyabonyi/Nyaganga court clerk
Mr. Masese for appellant
Mr. Gitonga for state
Gitonga: I concede to the appeal. Firstly, the appellant was not convicted at all. Secondly, even if he had been properly convicted, the plea itself was unequivocal.
ASIKE-MAKHANDIA
JUDGE
Masese: I was going to advance the same grounds. I am obliged that the state has conceded to the appeal.
ASIKE-MAKHANDIA
JUDGE
JUDGMENT
The appellant was allegedly convicted on his own plea of guilty. Upon conviction he was sentenced to 2 years imprisonment. Being dissatisfied with the conviction and sentence aforesaid, he lodged the instant appeal through Messrs G.J.M Masese Esq. The grounds of appeal were basically two; the plea as taken was not unequivocal and that the sentence imposed was manifestly excessive given the circumstances of the offence.
At the hearing of the appeal the state conceded to the same on the grounds that the appellant was not convicted as required before the sentence was imposed. Secondly, that even if the appellant had been properly convicted the pea itself was not unequivocal.
Mr. Masese agreed with the position taken by the state. In other words, he wholly associated himself with the submissions of the learned state counsel.
Having perused the record I have no doubt at all in my mind that the state was right in conceding the appeal. The plea as taken completely violated the procedure for taking pleas set out in the celebrated case of Adan –vs- Republic (1973) E.A 445. Ideally, the magistrate ought to have entered a plea of guilty against the appellant once the charge was read to him and he admitted the same. An accused cannot be convicted on the basis of the charge being read to him and admits the same. Conviction can only be entered once the facts have been read out and the accused accepts them as well. Because of this procedural irregularity, the appellant was not properly convicted to warrant the sentence imposed. Indeed there is no entry of a conviction once the facts were laid out by the prosecution and accused called upon to admit. The appellant did admit to the facts. However, there was no conviction thereafter.
The appeal is allowed conviction quashed and sentence imposed set aside. The appellant should be set at liberty forthwith unless otherwise lawfully held.
Judgment dated, signedanddelivered at Kisii this 9th day of May, 2011.
ASIKE-MAKHANDIA
JUDGE