[2012] KEHC 5702 (KLR)
The court found that the sentence of four years imprisonment imposed on the appellant for the offence of escape from lawful custody was illegal because the Penal Code classifies the offence as a misdemeanor, for which the maximum sentence is two years imprisonment or a fine or both. The court relied on Section 36...
Source-derived case information.
- Citation
- [2012] KEHC 5702 (KLR)
- Parties
- Appellant: Francis Achoka Ekale; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 164 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Escape From Lawful Custody, Sentencing Illegality, Plea of Guilty, Misdemeanor Definition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Achoka Ekale
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant upon his plea of guilty was lawful.
- 2 Whether the appellant, having pleaded guilty, could appeal against the sentence.
Ratio Decidendi
The court found that the sentence of four years imprisonment imposed on the appellant for the offence of escape from lawful custody was illegal because the Penal Code classifies the offence as a misdemeanor, for which the maximum sentence is two years imprisonment or a fine or both. The court relied on Section 36 and Section 123 of the Penal Code, as well as Section 348 of the Criminal Procedure Code, which allows an appeal on the legality of the sentence even after a plea of guilty. Consequently, the court set aside the illegal sentence and substituted it with a sentence of 12 months, noting that the appellant had already served this period and ordering his immediate release unless...
Court Disposition
appeal allowed
Orders
- The sentence of four years imprisonment imposed on the appellant is set aside.
- The appellant is sentenced to 12 months imprisonment.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT NAKURU
CRIMINAL APPEAL 164 OF 2011
FRANCIS ACHOKA EKALE..........................................................................APPELLANT
VERSUS
REPUBLIC..................................................................................................RESPONDENT
(From original conviction and sentence in Criminal Case No. 1174 of 2011 of the Principal Magistrate\'s Court at Nyahururu – A. B. Mongare, SRM)
JUDGMENT
1. Francis Achoka Ekale was charged with the offence of Escape from lawful custody, contrary to Section 123 of the Penal Code, (Cap. 63, Laws of Kenya). He pleaded guilty and confirmed the facts relating to the offence and his plea of guilty was confirmed. He was sentenced to four years imprisonment. 2. Section 348 of the Criminal Procedure Code prohibits the court from entertaining any appeal where an accused has been convicted of an offence upon his own plea of guilty. The exception is the extent and the legality of sentence. 3. The Appellant was unhappy with his sentence, and has for that reason come to this court. He said so in his submissions. 4. Mr. Omutelema learned Assistant Director of Prosecutions did not oppose the appeal. The punishment for misdemeanors is prescribed by Section 36 of the Penal Code - “where in this Code, no punishment is specially provided for any misdemeanor, it shall be punishable with imprisonment for a term not exceeding two years, or with a fine or with both.” Section 123 of the Penal Code provides that any person who being in lawful custody escapes from that custody is guilty of a misdemeanor. By definition a misdemeanor is any offence which is punishable by a sentence of less than three years. A felony is any offence punishable by a sentence of three or more years imprisonment. 5. The sentence of four years imposed upon the appellant was therefore illegal. It is set aside, and substituted with a sentence of 12 months. 6. Appellant was sentenced and committed to jail on 7th June 2011, he has already served that term. Unless there is lawful cause for his continued detention, I direct that he be released forthwith. It is so ordered.
Dated, signed and delivered at Nakuru this 31st day of July, 2012
J. ANYARA EMUKULE JUDGE