[2012] KEHC 4823 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT

AT BUNGOMA

CRIMINAL APPEAL NO.46 OF 2011

(Being conviction and sentence by the Senior Resident Magistrate at Sirisia in Cr. Case No.218 of 2011)

JULIUS SINDANI KIKETE:::::::::::::::::::::::: APPELLANT

~VRS~

REPUBLIC:::::::::::::::::::::::: RESPONDENT

JUDGMENT

The Appellant was convicted on his own plea of guilty of housebreaking and stealing contrary to section 304 (c) and 279 (b) of the Penal Code and sentenced to serve 3 years on each limb. It was ordered that the terms should run concurrently. He filed this appeal in which he complained that the plea was equivocal; the alternative charge of handling stolen property contrary to section 322 (2) of the Penal Code had been read to him but had instead been withdrawn under section 87 (a) of the Criminal Procedure Code; the charges were duplex and the sentence was wrong. The appeal was argued on his behalf by Mr. Kweyu who relied on the decisions in Adan v Republic [1973] EA 445 and Wanjiru v Republic [1975] EA 5. Mrs Leting for the State opposed the appeal.

The Appellant was charged with housebreaking and stealing contrary to section 304 (1) and 279 (b) of the Penal Code and in the alternative with handling stolen property contrary to section 322 (2) of the Penal Code. Once, he pleaded guilty to the main charge and was convicted, there was no need or reason for the alternative charge to be read to him. There was no need for the court, like it did, to withdraw the alternative charge under section 87 (a) of the Criminal Procedure Code.

Regarding plea, the substance of the main charge and all its elements were read and explained to the Appellant in Kiswahili language. He was asked to plead and he responded “It is true”. The prosecutor then narrated the facts. They were that the complainant securely locked her house at about 8. 00 a.m and went to Sango Market. She returned at about 11. 00 a.m and found the window to the bedroom open. She entered the house and found the Appellant who grabbed her neck so that she could not scream. He then ran out. She screamed and neighbours came. They chased and caught him. In the meantime, the complainant checked her bed-room and found her cash Ksh.800/= missing. She informed those who had arrested the Appellant. He was found with the money. While being taken to the police station he escaped. The matter was reported and the money was handed to the police. He was subsequently arrested and charged. In the main charge, it was alleged he had broken into the house and stolen Ksh.800/= the property of the complainant. In the alternative charge, it was alleged he was found with the money knowing it to be stolen or unlawfully obtained. When asked to the facts he responded “all the facts are true” whereupon he was convicted. It is clear that the trial magistrate was careful in taking plea and complied with the provisions of section 207 of the Criminal Procedure Code and the direction in Adan v Republic (above). The case cannot be compared with that in Wanjiru v Republic where all that was recorded as the Appellant’s response was “It is true”and there was no outline by the prosecution of the facts that constituted the offence. The plea in the instant case was unequivocal. The consequence is that the appeal against conviction is dismissed.

Regarding sentence, the trial court appears to have been influenced by the prosecutor’s statement that the offence was serious and deserved deterrent treatment because the offence was on the increase in the area. This is what made the court to award 3 years on each limb. It was not for the prosecution to tell the court of his view as to the seriousness of the offence or to make any other comment with a view to influencing the sentence. (Shiani v Republic [1972] EA 557). All that he was required to do was to indicate whether or not the Appellant had a past record. It was wrong and prejudicial for the prosecution to make the remarks that it did.

Further, the record does not reflect that the court considered that the Appellant was a first offender who had pleaded guilty to the charge. It was pointed out in Nilsson v Republic [1970] EA 599 that the fact that the Appellant was a first offender who had pleaded guilty should be considered in sentencing. The court should also have considered that the amount stolen was only Ksh.800/= and that it had been recovered. I find that the court, in reaching the sentence, considered immaterial factors and also failed to consider material factors. It is for these reasons that I set aside the sentence of 3 years on each limb. I order the Appellant to await a Community Service Orders Report which should be prepared in 7 days. The case shall be mentioned on 28/3/2012 for sentence.

Dated and Delivered at Bungoma this 21st day of March, 2012.

A. O. MUCHELULE

JUDGE