[2014] KEHC 1739 (KLR)
The court found that the applicant's plea was not unequivocal because no facts were read to him after plea taking, depriving him of sufficient detail to answer the charge as required by Article 50(b) of the Constitution. Furthermore, the sentence imposed by the trial magistrate—a fine of Ksh. 100,000 or one year...
Source-derived case information.
- Citation
- [2014] KEHC 1739 (KLR)
- Parties
- Applicant: Kahindi Yaa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 61 of 2013
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Conviction and Sentence
- Outcome
- conviction and sentence reversed; retrial ordered
- Judges
- GO Shikwe
- Legal Topics
- Plea Taking Procedure, Sentencing Powers, Building Regulations, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kahindi Yaa
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Conviction and Sentence
Legal Issues
- 1 Whether the applicant's plea was unequivocal given that no facts were read to him after plea taking.
- 2 Whether the sentence imposed exceeded the statutory maximum under the relevant building by-laws.
- 3 Whether the applicant's right to be informed of the charge with sufficient detail was violated.
Ratio Decidendi
The court found that the applicant's plea was not unequivocal because no facts were read to him after plea taking, depriving him of sufficient detail to answer the charge as required by Article 50(b) of the Constitution. Furthermore, the sentence imposed by the trial magistrate—a fine of Ksh. 100,000 or one year imprisonment—was not provided for under the Building Code and Building Orders 1968, which set the maximum penalty at Ksh. 2,000 or six months imprisonment or both. These procedural and substantive errors rendered the conviction and sentence unlawful. Consequently, the court reversed the conviction and sentence and ordered a retrial before a court of competent jurisdiction.
Court Disposition
conviction and sentence reversed; retrial ordered
Orders
- The conviction and sentence against the applicant are reversed.
- The matter is to be retried by a court of competent jurisdiction.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL REVISION NO. 61 OF 2013
(From original Conviction and Sentence in Criminal case No. M. 735 of 2013 in the
Resident Magistrate's Court at Mombasa – Hon. A.K. Gachie -RM)
KAHINDI YAA ............................................................………...APPLICANT
VERSUS
REPUBLIC ……….…….....................................................RESPONDENT
RULING
This revision application was commenced by way of a letter dated 12th April, 2013 by Mwakisha Advocate and addressed to the Deputy Registrar.
The grounds are that no facts were read over to the Accused as the record of proceedings shows that what was recorded after his plea was “facts as per charge sheet”. It is contended that the plea was not unequivocal.
I have perused the record of proceedings and its noted that the Applicant was charged with the offence of erecting a building without first giving in Writing or a Notice of Inspection card contrary to by law 16 (1) as read with by law 257 of the building orders 1968.
As pointed out by Counsel for the applicant the penalty provided for under section 257(2) is a fine not exceeding Two Thousand Shillings (2,000/=) or Imprisonment for a term not exceeding six(6) months or both, but in the present case the applicant was fined Ksh. 100,000/= in default one (1) year imprisonment and it was further ordered that the cash bail to be utilized as fine.
Article 50(b) of the Constitution provides that an Accused person has the right to be informed of the charge with sufficient detail to answer it.
In the present case no facts were read to the Accused and therefore he was not afforded sufficient details to which he could answer it.
The learned trial magistrate proceeded to Sentence the applicant to pay a fine of Ksh. 100,000/= in default one(1) year imprisonment which fine and imprisonment term was not provided for under the Building code and Building orders 1968.
By reason of the foregoing I accordingly reverse the Conviction and Sentence meted out on the applicant and order that the matter be retried by a Court of competent jurisdiction. Matter to be mentioned before the In charge City Court.
Ruling delivered dated and signed this 18th day of November, 2014.
…....................
M. MUYA
JUDGE
18TH NOVEMBER, 2014
In the presence of:-
Court clerk Benson
Absence of the applicants
FURTHER ORDERS:
Mention on 28th November, 2014 before Chief Magistrate for further directions.Notice to issue to the Counsel for the applicant, the Director of Public Prosecution.
…...................
M. MUYA
JUDGE
18TH NOVEMBER, 2014