https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12588

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **CRIMINAL APPEAL NO. E077 OF 2025** **JACOB GIKUNDI KARWIGI ……………………………….…… APPELLANT** **VERSUS** **REPUBLIC ……………………………….…..……….….…….RESPONDENT** **JUDGMENT** 1. This is an appeal against the conviction and sentence by the Hon. M. Okuche (SPM) given on 11.11.2024 in Nyeri CMCCRC No. E796 of 2023. 2. The appellant was charged with the offence of breaking into building and committing felony. The particulars were that on the 10.05.2023 at Ngangarithi, area, in Nyeri central sub-county, within Nyeri County, jointly with others not before the court, broke and entered a shop of Moses Mathenge Wanjiku and therein stole two 50 kg gas cylinders, thirteen 13kg gas cylinders, 7 burners, a blender, a spanner, a pliers, and tester valued at Kshs. 300,000/=, property of Moses Mathenge Wanjiku. 3. There was an alternative count of handling stolen goods contrary to Section 322(1) and (2) of the Penal Code. The particulars were that on the 10.05.2023 at Ngangarithi, area, in Nyeri central sub-county, within Nyeri County, jointly with others not before the court, was found in possession of two 50 kg gas cylinders, four 13kg gas cylinders, a blender, a spanner, a pliers, and tester knowing or having reason to believe them to have been stolen or unlawfully obtained. 4. The Appellant was arraigned in court on 22.05.2023 before Hon. M. N. Lubia (SRM) and pleaded not guilty. The co-accused pleaded guilty. Facts were read to the second accused who denied then. A plea of not guilty was consequently entered. The matter proceeded for hearing on 5.07.2023. The complainant testified that his shop was broken into, and several properties stolen. After investigation the following were recovered from the appellant, that is, two bulky gas cylinders, four 13 Kg gas cylinders, six 6 kg gas cylinders, and a blender. The blender had been left as security by his customer. The second accused was also in the accused’s house. On cross examination by the appellant the witness stated that he was at the gate to the house when the recovery was made. The gate was open and he could see recovery. 5. The matter adjourned and there was a bit of reed dance until 28.09.2023. The matter was for hearing and the court, Hon. M. Okuche (SPM) was ready to hear the case. The appellant indicated that he wished to change plea. He stated as follows: *Accused 1: I wish to change my plea.* 1. The charges were again read to the appellant in Kiswahili, a language he indicated he understood and he replied, ‘it is true.’ Facts were read to him and he said “facts are true.” He was convicted on his own plea of guilty in the main count. He mitigated. The court sentenced him to 7 years imprisonment. 2. The prosecution indicated that the appellant is not a first offender, he was convicted in 797 of 2023 where he was serving 4 years. The appellant simply requested for non-custodial sentence. 3. Aggrieved, the Appellant lodged the Petition of Appeal dated 18.11.2025. He had been granted leave of the court in Misc. Criminal Application No. E061 of 2025. He set out 16 grounds of appeal. It is not necessary to set out the said grounds as they are ancillary, repetitive, prolix and a waste of judicial time. This court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the court. In the case of [**Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] KECA 224 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2020/224/eng%402020-11-06)**,** the court of appeal posited as follows: What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal.(See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented: “We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” 1. There were also Amended Grounds of Appeal filed together with the appellant's submissions. The same were canvassed in the written submissions. They will best be considered in the submissions and I shall address the issues arising therefrom in the determination of this appeal. Submissions 1. The Appellant filed written submissions dated 29.04.2026. He submitted that the trial court failed to take into account the doctrine of the same transaction when passing sentence. He further contended that the court erred in convicting him on what he termed as an equivocal plea of guilty. The Appellant submitted that the plea was not unequivocal and that the conviction founded upon it was therefore unsafe. According to him, the trial court failed to reconfirm the plea at a later stage of the proceedings, thereby rendering the plea equivocal. He maintained that, in the circumstances, the plea could not form a proper basis for conviction and sentence. 2. They blamed the court for failing to explain the charge. Reliance was placed on **Adan V Republic (1973) EA 445**. He blamed the court on the language English /Kiswahili. He also submitted that his rights under that articles 25(c) and 50(2) of the constitution were breached. He submitted that that there were irregularities, that is failure to explain the charge, to ensure the plea was unequivocal, to inquire into his mental state and comprehension, which are said to have breached the appellant’s right to fair trial. Reliance was placed on the cases of [**James Ochomo Odionyi v Republic [2016] KECA 34 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/34/eng%402016-12-16), where it was stated as follows: As to whether to order a retrial, in the case of Ekimat vs Republic (2005) 1 KLR, 182 this Court stated; “A retrial should not be ordered unless the court is of the opinion that on a consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on its particular facts and circumstances but an order for the retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to an accused person. 1. He prayed that 7 years sentence be set aside and it runs concurrent with sentences in his three other cases. 2. The Appellant also submitted that the Respondent failed to follow strict procedure in relation to inventory of seizure, certificate of sampling, Government Analyst report and testimony of a gazetted analyst. He cited Section 74A of the Act. Reliance was placed on **Moses Banda v Daniel (2016) eKLR** based on which it was submitted that the procedure in Section 74A of the Act was mandatory and failure to follow it would render any sentence imposed not to stand. 3. It was submitted that the plea was unequivocal and the sentence was excessive and based on pubic sentiments. He submitted that the language of the plea was not recorded and no caution was administered. 4. The Respondent filed submission on 30.04.2026. It was submitted that the plea was unequivocal. They cited **Adan v Republic (1973) EA**. 5. It was further submitted that the sentence was proper as in law provided as the appellant had a previous record, being CR 797 of 2023. This is what gave rise to the appeal. They submitted that every element of the charge was read to the appellant. They submitted that the evidence against the appellant was cogent and the appellant knew the position. They averred that section 207 of the Criminal Procedure Code was complied with. 6. They placed further reliance on the case of **Wanjema v Republic (1971) EA 493. At page 494,** where it was averred, that sentence must depend on its own particular facts. The court stated as follows: *“An appellate court should not interfere with the discretion which a trial court has exercised as to sentence unless it is evident that it overlooked some material factor, took into account some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case.”* 1. They submitted that the sentences were lenient. They submitted that Articles 25(c) and 50(2) of the constitution were not breached. It was submitted that section 348 of the Criminal Procedure Code allows appeals only to the extent of legality of sentence. They averred that there is nothing impeaching the plea of guilty. Reliance was placed on **Ndede vs Republic [1991] KLR 567 & Nelson vs Republic [1970] E.A. 599.** Analysis 1. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in ***Pandya vs Republic [1957] EA 336*** held as follows: On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 1. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of **Okeno v Republic [supra],** the East Africa Court of Appeal stated on the duty of the court on a first appeal: An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 1. However, the matter herein relates to a plea of guilty. An appeal is not allowed unless to the extent of the unequivocally of the plea and compliance with procedural safeguards. Section section 348 of the Criminal Procedure Code posited as follows: **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 or legality of the sentence.** 1. Therefore, there should not be an appeal from a plea of guilty. However, precedent has shown that there could be an appeal on the equivocality of plea. As to whether the plea was unequivocal, it is instructive to note that the procedure of taking plea is provided for under section 207 of the Criminal Procedure Code as follows: 2. The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement. 3. If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary: Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded. 4. The procedure was properly outlined and set out in the case of **Adan v R (1973) 446** as follows: “When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own word, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts if the accused does not agree with the statement of facts or asserts additional facts which if true might raise a question as to his guilt, the magistrate should record a change of plea to “not guilty” and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused’s reply must, of course, be recorded”. 1. Where a plea is equivocal, the court cannot accept the same. In **P. Foster (Hallege) Ltd -Vs- Roberts** (1978) 2 ALL ER 751, 754 – 755 it was held thus: *“... A court cannot accept an equivocal plea of guilty: It … must either obtain an equivocal plea or enter a plea of not guilty. For a plea to be equivocal the defendant must add to the plea of guilty qualification which, if true, may show that he is not guilty of the offence charged.”* 1. The appellant in this court chose Kiswahili as the language he understands. That was the same position in the court below. He first pleaded not guilty. The first witness testified. He then prayed that he changes plea. The words in the record are ‘I wish to change plea.” There are no contestations that this was not the request. My understanding of change of plea is that the appellant wished to have plea other than the plea he had earlier taken, that is the plea of not guilty to one which was not ‘plea of not guilty’. 2. The record reveals that on 28.09.2023, the trial court enquired and the Appellant stated that the language he understood was Kiswahili. The charges were then read to him and he answered ‘It is true.’ The state counsel then read the details and facts of the charges constituting the offence in Count I. The Appellant stated that he understood the facts and they were true. This is not the same status person who was just brought to court and pleaded for the first time. In this matter, the plea was read to him in Kiwahili and he pleaded not guilty. He then changed his mind after PW1 gave evidence. That evidence was incriminating on the appellant. He decided to change plea. Change means to plead a different plea from the one initially pleaded. In this case, he had pleaded guilty. To change basically means to plead guilty. There is no other interpretation on change of plea. There are no other safeguards the court will have taken. In the case of [**Ikoka v Republic [2025] KECA 614 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/614/eng%402025-03-28)**,** the court of appeal [HM Okwengu, HA Omondi & JM Ngugi, JJA] addressed the question of unequivocal plea, when there is change of plea. **24. From the above, there is nothing to show that the appellant was confused or did not fully understand the charge. It is clear that the appellant decided to change his plea on his own volition and we are satisfied that his plea of guilty was unequivocal.** 1. In the case of [**Wakianda v Republic [2016] KECA 181 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/181/eng%402016-11-17)**,** the court of appeal [PN Waki, RN Nambuye & PO Kiage, JJA] posited as follows: 12. Given all the safeguards available to an accused person through the process of trial, the entry of a plea of guilty presents a rare absolute capitulation; a throwing in of the towel and a giving of a walkover to the prosecution and often at great cost. A conviction comes with its consequences of varying gravity. Thus it is that the courts, at any rate appellate courts, would not accept a plea of guilty unless satisfied that the same has been entered consciously, freely and in clear and unambiguous terms. The process of ensuring this was well-captured in the oft-cited case of [*Adan v Republic*](https://droitandleyadvocates.wordpress.com/2015/08/30/adan-v-r-1973-ea-445/comment-page-1/) (supra) and has been followed in many cases after it. See: *[Lusiti v Republic](https://kenyalaw.org/akn/ke/judgment/kehc/1977/15%22%20%5Ct%20%22_blank)* [1976-80] 1 KLR 585;*[Kariuki v Republic](https://kenyalaw.org/akn/ke/judgment/keca/1984/79%22%20%5Ct%20%22_blank)* [1984] KLR 809. 13. The beginning point of ensuring that the accused person has entered into a free and conscious plea of guilty is being satisfied that he understands the proceedings and that he in particular understands the charge that is facing him. Indeed, the court taking the plea is required to read and explain to the accused the charge and all the ingredients in the accused person's language or a language he understands. In the instant case, the record reads thus;“Court: The substance of the charge(s) and every element thereof has been stated by the court to the accused in a language that he understands who being asked whether he admits or denies the truth of the charge replies in Kiswahili:- “It is true.” 14. With respect, we find this disturbing. It seems to us that this is part of a template used by courts at plea taking. That is why it speaks of “charge(s)” when there was a single charge and the rather odd “in a language he understands”, when it is more normal and logical to simply state the language used. This smacks of a mere going through the motions, a recital of ritual. While that may not much matter when the plea entered is one of not guilty followed by a trial with all its attendant safeguards, it assumes a critical dimension when the plea is one of guilty and leads to conviction. 15. We think that it is good practice for the specific language used to state the elements of the charge be specifically stated. That should be established by specifically asking the accused what language he understands, and recording his answer before either using the language he mentions or ensuring a translator is present to convey the proceedings to him in the chosen language. We also think that the elements of the offence are not complete if the sentence, especially if it is a severe and mandatory sentence, is not brought to the attention of the accused person. One surely ought to know the consequences of his virtual waiver of his trial rights that the[*Constitution*](https://kenyalaw.org/akn/ke/act/2010/constitution) guarantees him. That did not occur here and yet the appellant was unrepresented calling upon the trial court to be particularly solicitous of his welfare. The officer presiding is not to be a mere umpire aloofly observing the proceedings. He is the protector, guarantor and educator of the process ensuring that an unrepresented accused person is not lost at sea in the maze of the often- intimidating judicial process. 16. We are not satisfied that the appellant herein, to use the phraseology of [*Lusiti v Republic*](https://kenyalaw.org/akn/ke/judgment/kehc/1977/15) (supra) “wished to admit without any qualification each and every essential ingredient of the charge”. The fact that he had a history of psychiatric challenges only goes to add to the possibility of equivocation but we shall not explore the issue further in view of what we shall shortly state. 1. In this case the facts were clearly read to the Appellant in Kiswahili language that he chose. When he was called to answer he stated *"the facts are true."* This plea was unequivocal plea. There was no provocation or undue influence demonstrated. In *Kato v Republic [1971] 1 E.A 542 (CAD*) the Court of Appeal set out the way of taking the plea and in that case, where plea was equivocal the court quashed the conviction and set aside the sentence. In that case the court said: *The procedure relating to the calling upon the accused person to plead is governed by s.203 of the Criminal Procedure Code. In our view, if it can be clearly shown that an accused person has admitted all the ingredients which constitute the offence charged, it is then proper to enter a plea of guilty. The words "it is true" when used by an accused person may not amount to a plea of guilty, for example, in a case where there may be a defence of self-defence or provocation. As was said by this court in the case of R v Yonasani Egalu (1942), 9 E.A.C.A. 65, at p. 67"* 1. The Appellant properly took his plea in a language he understood which was Kiswahili language. He admitted the charges and the case proceeded to mitigation before he was sentenced. The issue of equivocal plea therefore does not arise. The Appellant did not dispute the facts as narrated, which meant that his was an unequivocal plea of guilty, and the trial magistrate correctly entered the pea and convicted him after mitigation. 2. The other grounds introduced in the submissions relating to sanity are flimsy and do not go to the root of the trial in light of the plea of guilty. This is also a roundabout way of challenging the unequivocal plea which he took. The question of sanity is not part of the court or prosecution. Everyone is presumed sane. Section 11 of the Penal Code, provides as follows: *Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.* 1. There was no plea of insanity taken in the court below and as such the same cannot be raised at this level. Further, the court met all the parameters for an unequivocal plea. We think that it is good practice for the specific language used to state the elements of the charge be specifically stated. That should be established by specifically asking the accused what language he understands, and recording his answer before either using the language he mentions or ensuring a translator is present to convey the proceedings to him in the chosen language. We also think that the elements of the offence are not complete if the sentence, especially if it is a severe and mandatory sentence, is not brought to the attention of the accused person. One surely ought to know the consequences of his virtual waiver of his trial rights that the[Constitution](https://kenyalaw.org/akn/ke/act/2010/constitution) guarantees him. That did not occur here and yet the appellant was unrepresented calling upon the trial court to be particularly solicitous of his welfare. The officer presiding is not to be a mere umpire aloofly observing the proceedings. He is the protector, guarantor and educator of the process ensuring that an unrepresented accused person is not lost at sea in the maze of the often- intimidating judicial process. 16.We are not satisfied that the appellant herein, to use the phraseology of [Lusiti v Republic](https://kenyalaw.org/akn/ke/judgment/kehc/1977/15) *Lusiti, Charles v Republic* Criminal Appeal 319 of 1971; [1977] KEHC 15 (KLR), “wished to admit without any qualification each and every essential ingredient of the charge”. The fact that he had a history of psychiatric challenges only goes to add to the possibility of equivocation but we shall not explore the issue further in view of what we shall shortly state. 1. There was no history of psychiatric challenges given. Plea was thus proper. The appeal on conviction is unmerited and is consequently dismissed. 2. The court now turns to sentencing, which is one of the most intricate aspects of the criminal trial process and forms an integral part of the administration of justice. It complements the trial by determining the appropriate consequence of criminal conduct. A proper sentence should meet the ends of justice and uphold the fundamental principles of sentencing, including proportionality, deterrence, rehabilitation, retribution, restorative justice, denunciation, reconciliation and reintegration and protection including community protection. The objectives of sentencing as set out in the 2023 Sentencing Guidelines are as follows: *“1.3.1 Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other – insofar as possible, sentences imposed should be geared towards meeting the objectives in totality.* * + 1. **Retribution**: To punish the offender for their criminal conduct in a just manner. 2. **Deterrence**: To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences. 3. **Rehabilitation**: To enable the offender to reform from his/her criminal disposition and become a law-abiding person. 4. **Restorative Justice**: To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs. Community 5. **Protection**: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts. 6. **Denunciation**: To clearly communicate the community’s condemnation of the criminal conduct. 7. **Reconciliation**: To mend the relationship between the offender, the victim and the community. 8. **Reintegration**: To facilitate the re-entry of the offender into the society” 1. This appeal on sentence revolves solely around the complaint that the sentence imposed was excessive and that the appellant's mitigation was not considered. The trial court directed that a report be prepared in respect of the appellant. However, report was filed and referred by the court. The aspect relating to the appellant's previous conviction was addressed. Prior conviction has not been challenged in this appeal, the appellant indicates he is a first offender. According to him this was the first time he was in prison. However, it was over a series of cases, in which the appellant's main grievance is that the sentences imposed in the various cases ought to have been ordered to run concurrently. 2. Notably, no pre-sentence or psychosocial report was filed before the trial court. Further, the record does not demonstrate that the appellant was afforded an opportunity to tender mitigation before sentence was passed. The court appears to have considered only one aspect, namely the appellant's previous conviction, without taking into account any mitigating circumstances that may have been available to the appellant. 3. The appellant did not mitigate and was not was not invited to do so. The importance and place of mitigation in criminal jurisprudence was addressed in the locus classicus case of [**Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2017/2/eng%402017-12-14), where the supreme court [DK Maraga, PM Mwilu, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola] posited as follows: 46. We are of the view that mitigation is an important congruent element of fair trial. The fact that mitigation is not expressly mentioned as a right in the Constitution does not deprive it of its necessity and essence in the fair trial process. In any case, the rights pertaining to fair trial of an accused pursuant to article 50(2) of the [Constitution](https://kenyalaw.org/akn/ke/act/2010/constitution) are not exhaustive. 47.Indeed the right to fair trial is not just a fundamental right. It is one of the inalienable rights enshrined in article 10 of the [Universal Declaration of Human Rights](https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf), and in the same vein article 25(c) of the [Constitution](https://kenyalaw.org/akn/ke/act/2010/constitution) elevates it to a non-derogable right which cannot be limited or taken away from a litigant. The right to fair trial is one of the cornerstones of a just and democratic society, without which the Rule of Law and public faith in the justice system would inevitably collapse 1. A fair trial has many facets, which includes mitigation and the right to appeal or apply for review by a higher court as prescribed by law. The right of appeal on sentence has been exercised. However, mitigation was not considered. 2. The Appellant was convicted of breaking and committing a felony contrary to section 306 of the penal code. He was sentenced to 7 years. He was sentenced to the maximum period given under the said section. 3. Further, maximum sentence was given despite the fact that this was a plea of guilty. The court is obligated to look at both mitigation and aggravating factors. Prior conviction only goes towards removing non-custodial sentence from the table. It does not of necessity enhance the sentence. Previous conviction and the effect thereof are set out in Section 37 of the Penal Code, as follows: Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence, other than a sentence of death, which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof: Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under subparagraph (i) of paragraph (c) of subsection (1) of section 28 or of any part thereof. 1. The court did not have regard to the sentencing guidelines. The court should at least peruse them and make one or two comments to enable the harm caused and culpability of the appellant. Sentencing guidelines provide the role of previous relevant conviction as follows: 5.1.13 Apart from factors that relate to the culpability of the offender in the execution of the offence or offences, the court will also be told of other factors that relate to the offenders’ personal circumstances, conduct after the offence, the role the offender played in the offence as a whole, and other matters raised by the defence (if represented), or elicited by the court directly from the offender through careful questioning. The prosecution may also have raised certain issues that are not directly relevant to the offence (such as assistance given to the investigation) or previous relevant convictions. This may raise or reduce the ‘moral culpability’ of the accused. 1. The court did not analyse how each of factors contributed to the conviction. Further, from the alternative count and evidence of PW1, it is clear that a substantial portion of goods stolen were recovered. The recovery should have added or subtracted from the moral culpability’ of the appellant. Unfortunately, both the psychosocial enquiry report and mitigation were not considered in addition to the plea of guilty. The sentence provided is that of “liable to”. There are two aspects of the punishment that should be dealt with. The first one is ‘shall’ and the second one is ‘liable to’ in one sentence, that is, “shall be liable’. The court of appeal in [**Caroline Auma Majabu v Republic [2014] KECA 269 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/269/eng%402014-10-09) stated as follows: [13] In our view, the word “*shall*” is used in relation to the guilt of the offender and the word used in relation to the sentence is “*liable*”. The *Concise Oxford English Dictionary 12th Edition* defines the word “*liable”* as *“(i) Responsible by law, legally answerable, (liable to) subject by law to;* *(ii) (Liable to do something) likely to do something;* *(iii) (Liable to) likely to experience (something undesirable).* *Black’s* *Law Dictionary* defines “*liable*” as 1. *Responsible or answerable in law; legally obligated,* 2. *Subject to or likely to incur (a fine, penalty etc.)* 14] Applying the above definition, the use of the word “*liable”* in *section 4(a)* of Narcotic Drugs and Psychotropic Substance Control Act merely gives a likely maximum sentence thereby allowing a measure of discretion to the trial court in imposing sentence with the maximum limit being indicated. It should be noted that sentencing is an exercise of judicial discretion, and therefore provisions which provide for mandatory sentence compromise that discretion, and are the exception rather than the rule. Thus, where applicable the mandatory sentence must be expressed in clear and unambiguous terms. 1. Further in the case of [**Daniel Kyalo Muema V Republic [2009] KECA 431 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2009/431/eng%402009-10-09)**,** the Court of Appeal [E. M. Githinji, D. K. S. Aganyanya and J. G. Nyamu], cited with approval the meaning ascribed to the term ‘shall be liable’ in the case of ***OPOYA – Vs- UGANDA [1967] E.A 752*** where it was held: The last observation we want to make is that the phrase as used in Penal statutes was judicially construed by the predecessor of this Court in Opoya vs. Uganda [1967] EA 752, where the Court said at page 754 paragraph B: “It seems to us beyond argument the words “shall be liable to” do not in their ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed the court might not see fit to impose it” We have no doubt that the sentences of 10 years imprisonment and 20 years imprisonment prescribed in Section 3 (2) (a) of the Act for the possession of cannabis sativa are the maxima and that the court can lawfully impose any shorter term of imprisonment. Furthermore, although Section 3 (2) (a) of the Act does not expressly provide for a fine, the court can lawfully in accordance with Section 26 (3) of the Penal Code sentence the offender to pay a reasonable fine in substitution for imprisonment. From the foregoing, we conclude that the superior court misconstrued Section 3 (2) (a) of the Act and erred in enhancing the sentence of imprisonment. From the foregoing, we conclude that the superior court misconstrued Section 3 (2) (a) of the Act and erred in enhancing the sentence of imprisonment. 1. Sentences expressed under the tenor of “liable to” are governed by section 26 of the Penal Code, which provides that where an offender is declared liable to imprisonment for life or any other period, the court retains discretion to impose a lesser sentence unless the law expressly prescribes a mandatory minimum or mandatory sentence. The said section provides as follows: * 1. A sentence of imprisonment for any offence shall be to imprisonment or to imprisonment with hard labour as may be required or permitted by the law under which the offence is punishable. 2. Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term. 3. A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or in substitution for imprisonment: Provided that- * 1. where the law concerned provides for a minimum sentence of imprisonment, a fine shall not be substituted for imprisonment; 1. The use of the words “liable to” denotes the maximum sentence that may be imposed and does not, of itself, require the court to impose that sentence in every case. Accordingly, where a statute provides that an offender is “liable to” a specified term of imprisonment, the sentencing court is required to exercise its discretion judiciously, taking into account the circumstances of the offence, the offender's mitigation, any aggravating factors, and the objectives of sentencing. 2. Consequently, the sentence indicated as liable to includes a shorter sentence inclusive invocation of section 35 of the Penal Code that provides for Absolute and conditional discharge. The sentence also had to be one that was hinged on retributive justice for the secondary victims. If the court did not take into account the three (3) objectives of deterrence, retribution and denunciation of his offence at the time of sentencing him, chances of the Accused person being reintegrated in the society would be next to impossible as there were possibilities of being harmed or harming the society. 3. It is understood that sentence is a matter that rests in the discretion of the trial court. The court should not lightly interfere with sentence unless the same is manifestly excessive, illegal, failed to take into account relevant circumstances or took into account irrelevant circumstances. The Court of Appeal, on its part, in **Gacheru v Republic (Criminal Appeal 188 of 2000) [2002] KECA 94 (KLR)** posited as follows: “It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist. 1. The superior courts have over time distilled the principles to be considered in setting aside sentence meted out by the trial court. In the case of **Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No. 253 of 2003** the Court of Appeal stated thus:- **“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”** 1. The Court of Appeal for the former Eastern Africa, settled the principle that an appellate court will not ordinarily interfere with a sentence imposed by a trial court unless it is demonstrated that the trial court acted on wrong principles, overlooked material factors, considered irrelevant matters, or that the sentence is manifestly excessive or manifestly inadequate in the circumstances of the case, when it addressed the same in the case of **Ogolla s/o Owuor vs. Republic, [1954] EACA 270**, and pronounced itself on this issue as follows:- *"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”* 1. As a first appellate court, this Court must exercise caution before interfering with the sentencing discretion of the trial court. Sentencing is primarily a matter within the discretion of the trial court, and an appellate court ought not to interfere merely because it would have imposed a different sentence. This Court must therefore be careful not to interfere with that discretion unless it is demonstrated that the trial court acted on a wrong principle, overlooked a material factor, considered an irrelevant factor, or imposed a sentence that is manifestly excessive or manifestly inadequate in the circumstances. This was also addressed recently in the case of **Hillary Kipkirui Mutai v Republic [2022] KEHC 1179 (KLR)**, that: **9. Sentencing is an important aspect of the administration of justice. Noting that sentencing is based on a judicial officer’s discretion, this Court must be careful not to interfere with such a decision, unless it is demonstrated that the sentence was manifestly excessive, was illegal, improper or founded based on misrepresentation of material facts.** **In deciding on sentence, the court is bound by precedent and the applicable statute and sentencing guidelines. The offence the appellant was charged with is created under section 306 (a) of the penal code. The punishment is set out in section 306 (b) of the penal code. The said section 306 provides as follows:** **Any person who-** **(a) breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a** **building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling house and occupied with it but is not part of it, or any building used as a place of worship, and commits a felony therein; or** **(b) breaks out of the same having committed any felony therein, is guilty of a felony and is liable to imprisonment for seven years.** 1. The sentence failed to take into account the principles of proportionality and fairness and therefore warrants interference by this Court. The sentencing guidelines in the situational analysis provides as follows: 4.3.4 An offender’s guilty plea rarely impacted on the decision of the courts in the past. This is because of underlying perceptions that such consideration would be tantamount to ‘rewarding’ an offender. However, today, the discounting of sentences on this basis is considered acceptable; this is because aside from the aforementioned benefits to the victims and the criminal justice system, it is a clear expression of the willingness on the part of the offender to take responsibility for their actions. In addition, an early plea of guilty increases the chances of positive outcomes of reconciliation and re-integration of the offender. 1. The policy directions are indicated as follows: 4.3.5 The court must remain guided by the overall objective, which is the conviction of the guilty. It, therefore, shall satisfy itself that the accused person fully understands what pleading guilty means and the effect of pleading guilty. 4.3.6 Where courts are satisfied that it is safe to accept a plea of guilty, they should grant a discount after considering the appropriate sentence based on culpability and harm specific to the offence alongside other aggravating and mitigating features. Once the court has arrived at that sentence, a discount of up to one third of the sentence should be applied where the offender has pleaded guilty at the earliest opportunity. Thereafter, e.g., where an offender has pleaded guilty just before, or during trial, a lesser reduction may be afforded. 4.3.7 The reduction in sentence for a guilty plea can be taken into account by imposing one type of sentence rather than another – for example, by reducing a custodial sentence to one of community service or reducing community service to a fine. 4.3.8 Where an offender has indicated a plea to a lesser or different offence which is not accepted by the prosecution or the court, but is then later convicted of that lesser offence, the court should give a level of reduction that is appropriate to the stage at which that indication of plea was given. 4.3.9 In the case of a mandatory minimum sentence, the discount cannot go below that minimum term set by statute. 1. The bulk of the stolen property was recovered, thereby substantially mitigating the loss occasioned to the complainant. I have also considered the appellant's mitigation, including that he is a parent of two children who depend on him for their upbringing. However, I cannot overlook the fact that the appellant is not a first offender. The presentence report and the material placed before the court below show that he has previous convictions in several other cases. This is therefore not a case in which the offender can benefit from the full measure of leniency ordinarily accorded to a first offender. 2. Further, the Sentencing Policy Guidelines, require that the court looks at both the culpability and harm caused by the offence. From the analysis, the offence disclosed a high degree of culpability, although the harm occasioned falls within the medium category, particularly in view of the recovery of most of the stolen property. The sentence must therefore reflect the seriousness of the offence while remaining proportionate to both the offender and the circumstances of the case. 3. The appellant broke into a shop and stole goods worthy 300,000/=. A bulk of them were recovered. The court is enjoined to agree with the decision in the case of *WANJEMA VS R*. 1971 E.A 493, more particularly, on page 494 letters (D) to (E). This is what that court said:- *"A sentence must in the end, however, depend upon the facts of its own particular case. In the circumstances with which we are concerne d, a custodial order was appropriately made. But that which was made cannot possibly be allowed to stand.* *An appellate court should not interfere with the discretion which a trial court has exercised as to sentence unless it is evident that it overlooked some material factor, took into account some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case. The instant sentence merits this court's interference with it on each of these grounds. No account was taken as it should have been, of the fact that the appellant pleaded guilty: Skone (1967), 51 Cr. App. R. 165 and Godfrey (1967), 51 Cr. App. R. 449 (This admits of no doubt because the magistrate awarded the maximum sentence to this first offender; which of itself is unusual.) Matter extraneous to the trial was acted upon for the magistrate bore in mind that he had "issued a warning only last week that dangerous drivers will be dealt with severely by the court."* 1. Consequently, it is apparent that the sentence of 7 years' imprisonment was excessive, having regard to the circumstances of the case. While the sentence imposed was within the statutory limit, it effectively amounted to the maximum custodial sentence available. A plea of guilty ought ordinarily to attract a measure of leniency as it demonstrates acceptance of responsibility, saves judicial time, and spares witnesses the ordeal of testifying, unless the gravity or heinousness of the offence outweighs those mitigating considerations. 2. In the present case, although the offence disclosed a high degree of culpability, the harm occasioned falls within the medium category, particularly in view of the recovery of the bulk of the stolen goods. The appellant's plea of guilty, considered alongside the partial restoration of the complainant's property, the mitigating factors of having a father available to take care of his children, warrants a reduction of the sentence in order to achieve a just and proportionate outcome. 3. The appellant was arrested on 19.05.2023. However, he had been serving sentence in other matters from May 2023. Section 333(2) of the Criminal Procedure Act provides as follows: **(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.** **Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.** 1. The sentence cannot be ordered to run from the date of arrest given that he was serving other sentences. The court will not disturb the decision for sentences in the two counts to run concurrently. However, I decline to make an order relating to other offences committed in other files. ORDER 1. Arising from the foregoing, the application is allowed. This appeal is partly allowed in the following terms: 2. Appeal on conviction is dismissed. 3. Appeal on sentence is allowed. 7 years sentence is set aside and in lieu thereof substituted with 4 years’ imprisonment. 4. 14 days right of appeal. 5. File is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** this **27th** day of **July**, the year of our Lord **Two Thousand and Twenty-Six**. Ruling delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Pro se Appellant Mr. Kihara and Ms. Akinyi for the State/Respondent Court Assistant – Timothy