[2016] KEHC 5789 (KLR)
The court found that, despite minor procedural errors in the recording of the plea, the substance of the plea-taking process conformed to the requirements established in Adan v. R (1973) EA 445. The appellant clearly admitted to the charges and confirmed the correctness of the facts, which disclosed the offences...
Source-derived case information.
- Citation
- [2016] KEHC 5789 (KLR)
- Parties
- Appellant: Gladys Wambui Muchina; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 67 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Plea Taking Procedure, Sentencing Principles, Alcoholic Drinks Control, Mitigation, Repeat Offending
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladys Wambui Muchina
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea of guilty was properly taken in accordance with the law.
- 2 Whether the facts outlined by the prosecutor disclosed the offences charged.
- 3 Whether the sentence imposed was lawful and appropriate given the circumstances.
Ratio Decidendi
The court found that, despite minor procedural errors in the recording of the plea, the substance of the plea-taking process conformed to the requirements established in Adan v. R (1973) EA 445. The appellant clearly admitted to the charges and confirmed the correctness of the facts, which disclosed the offences under section 7(1)(b) as read with section 61 of the Alcoholic Drinks Control Act. The trial court considered the appellant's mitigation, her previous conviction for a similar offence, and the prevalence of the offence before imposing a sentence of one year imprisonment on each count, to run concurrently. The errors identified were deemed curable under section 382 of the Criminal...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed in its entirety.
- The conviction and sentence of one year imprisonment on each count, to run concurrently, are upheld.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL APPEAL NO. 67 OF 2015
GLADYS WAMBUI MUCHINA................................APPELLANT
VERSUS
REPUBLIC.............................................................RESPONDENT
JUDGEMENT
This is an appeal against both conviction and sentence of one year imprisonment imposed by the court of the Senior Resident Magistrate upon the appellant on 7th August 2015 in respect of the two offences of selling traditional liquor without a licence contrary to sections 7 (1) (b) as read with section 61 of the Alcoholic Drinks Control Act No. 4 of 2010.
Counsel for the appellant has raised five grounds in his petition of appeal. In ground 1 counsel has stated that the learned magistrate erred in law and fact in proceeding to take facts before he had recorded a plea of guilty. In ground 2 he has stated that the learned magistrate erred in law and fact in recording the facts and mitigation and then thereafter entered a plea of guilty and conviction, which he asserts is unprocedural. In ground 3 counsel for the appellant has stated that the learned magistrate relied on the appellant's plea of guilty and never considered the requirements of section 7 (1) of the Act. In ground 4 he has stated that the learned magistrate erred in law and fact in failing to appreciate that the facts outlined by the prosecutor did not disclose any offence. And finally, in ground 5 the learned magistrate erred in law in sentencing the appellant to a term of imprisonment instead of imposing a fine.
This is a first appeal. I am required to find out whether the plea of the appellant was properly taken. I have done so and I find that the plea of guilty was in substance properly taken. It is clear that the charges were read against the appellant in respect of counts 1 and 2. Thereafter the appellant is recorded to have stated as follows: “Count I: True, Count II: True”. In this regard, the trial court should have recorded a plea of guilty instead of the term “true”. This was followed by statement of facts which the appellant confirmed were correct. Thereafter the trial court proceeded to convict the appellant on her own plea guilty on both counts. The accused accepted as correct the fact that she was found selling traditional liquor without a licence, which were seized and ordered destroyed at the end of the trial. I find that the facts outlined by the prosecutor disclosed the offences charged. I also find that there is no evidence of a frame again the accused person.
As regards sentence, the accused according to the prosecutor had been convicted of the same offence in Criminal case No. 1887 of 2014 and was sentenced to serve one year probation. In her mitigation, she stated that she had children whom she was supporting. The trial court considered the mitigation of the appellant. It also considered that she had one previous relevant conviction. Furthermore, the court took into account that the offence with which the appellant was convicted was prevalent. It then proceeded to sentence the appellant to a term of one year imprisonment on each count which he then ordered should run concurrently.
I have considered the grounds of appeal and I have reviewed the procedure followed in taking a plea of guilty. It substantially conforms with the requirements as set out by the Court of Appeal in Adan v. R (1973) EA 445 There were errors which I have pointed out and these are curable errors in terms of section 382 of the Criminal Procedure Code.
The upshot of the foregoing is that the appeal is dismissed in its entirety.
JUDGEMENT DATED, SIGNEDand DELIVERED in open court at EMBU this.25th dayFEBRUARY2016
In the presence of Ms Mbae for the State and Mr. Mutahi for the Appellant.
Court clerk Njue.
J.M. BWONWONGA
JUDGE
25. 02. 16