[2010] KEHC 1752 (KLR)
The court found that the trial magistrate followed the correct procedure in taking and recording the appellant's plea, which was clear and unequivocal. However, the sentence of two years imprisonment on each count to run consecutively was deemed harsh given the amounts involved, the appellant's plea of guilty, and...
Source-derived case information.
- Citation
- [2010] KEHC 1752 (KLR)
- Parties
- Appellant: Joseph Chibule Tsuma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 175 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- JV Juma
- Legal Topics
- Obtaining by False Pretences, Plea of Guilty, Sentencing Principles, Mitigation, Consecutive Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Chibule Tsuma
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea of guilty entered by the appellant was unequivocal and properly recorded.
- 2 Whether the sentence imposed by the trial magistrate was harsh in the circumstances.
Ratio Decidendi
The court found that the trial magistrate followed the correct procedure in taking and recording the appellant's plea, which was clear and unequivocal. However, the sentence of two years imprisonment on each count to run consecutively was deemed harsh given the amounts involved, the appellant's plea of guilty, and the time already served. The appellate court held that a lesser sentence was warranted and reduced the sentence to time served, ordering the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal_allowed_in_part
Orders
- The appellant's conviction on both counts is upheld and confirmed.
- The sentence is reduced to time served.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL APPEAL 175 of 2008
JOSEPH CHIBULE TSUMA …..…….. APPELLANT
VERSUS
REPUBLIC ……………....…….………. RESPONDENT
************************
JUDGEMENT
The Appellant herein JOSEPH CHIBULE TSUMA has challenged his conviction and sentence by HON. W.F. ANDAYI Senior Resident Magistrate Kaloleni Law Courts.The Appellant was arraigned before the lower court on 20th June 2008 and was charged on two counts of OBTAINING MONEY BY FALSE PRETENCES CONTRARY TO SECTION 313 OF THE PENAL CODE.Both counts were read out to the Appellant and he entered a plea of guilty to each individual charge.Thereafter as required by S. 207(2) of the Criminal Procedure Code the facts of the charge were read out to the Appellant by the prosecutor INSPECTOR NGOMO.The Appellant did maintain his guilty plea by stating –
“All these facts are correct”
The learned trial magistrate then proceeded to convict the Appellant on both counts.In his mitigation the Appellant reiterated his plea of guilty by stating –
“It is true I met these men and took money from them.I had promised to refund by today …”
There can be no doubt at all that the learned trial magistrate followed the correct procedure in taking and recording the Appellant’s plea.There can further be no doubt that the Appellant entered a clear and unequivocal plea of guilty to both charges.As such I find that the conviction of the Appellant on both counts was proper and I do uphold and confirm the same.
In his written submissions the Appellant pleads against his sentence which he terms harsh.The trial magistrate after listening to the Appellant’s mitigation sentenced him to serve two (2) years imprisonment on each count and ordered that the sentences run consecutively making it a total sentence of four (4) years in prison.I have considered the amounts obtained and the fact that the Appellant pleaded guilty, thus he did not engage the court in an unnecessary trial.In my view given those circumstances the sentence was harsh.The trial magistrate ought to have considered imposing a fine with a sentence of imprisonment in lieu of payment.I note that the Appellant was sentenced on 20th June 2008 thus he has todate spent about two (2) years behind bars.I have no doubt that he has learnt his lesson.I do therefore reduce his sentence to time served.I now order that the Appellant be released forthwith unless he is otherwise lawfully held.
Dated and Delivered at Mombasa this 25th day of May 2010.
M. ODERO
JUDGE
Read in open court in the presence of:
Mr. Onserio for State
Appellant in person
M. ODERO
JUDGE
25. 05. 2010