[2015] KEHC 4976 (KLR)
The court found that the appellant's mitigation, stating he used explosives for digging wells, raised a plausible defence and amounted to a reasonable excuse under section 89(1) of the Penal Code. This rendered the plea of guilty equivocal, as the trial court failed to consider the defence raised in mitigation....
Source-derived case information.
- Citation
- [2015] KEHC 4976 (KLR)
- Parties
- Appellant: Kennedy Odhiambo Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 9 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction_and_sentence_set_aside_retrial_ordered
- Judges
- DAS Majanja
- Legal Topics
- Possession of Explosives, Equivocal Plea, Reasonable Excuse, Public Order Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Odhiambo Otieno
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's plea of guilty was unequivocal in light of his mitigation statement.
- 2 Whether the appellant had a reasonable excuse for possession of explosives under section 89(1) of the Penal Code.
Ratio Decidendi
The court found that the appellant's mitigation, stating he used explosives for digging wells, raised a plausible defence and amounted to a reasonable excuse under section 89(1) of the Penal Code. This rendered the plea of guilty equivocal, as the trial court failed to consider the defence raised in mitigation. Consequently, the conviction and sentence could not stand, and the matter was remitted for retrial to ensure the appellant had an opportunity to properly plead and present his defence.
Court Disposition
conviction_and_sentence_set_aside_retrial_ordered
Orders
- The conviction and sentence are set aside.
- The appellant shall be retried and remain in custody to plead before the Kehancha Principal Magistrates Court on 15th May 2015.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
CRIMINAL APPEAL NO. 9 OF 2015
BETWEEN
KENNEDY ODHIAMBO OTIENO ...............................................................APPELLANT
AND
REPUBLIC …........................................................................................... RESPONDENT
(From original conviction and sentence in Kehancha Court Criminal case No. 274 of 2014 delivered on 12th May, 2014 by Hon. C. M. Kamau – Ag. SRM)
JUDGMENT
1. Kennedy Odhiambo Otieno, the appellant, pleaded guilty to the offence of being in possession of explosives contrary to section 89 (1) of the Penal Code(Chapter 63 of the Laws of Kenya) and was sentenced to 7 years imprisonment. He was found in possession of two (2) feet Det code, Explo-get, super power 90 booster, two electrical detonators number 33, and a dry cell. It was alleged in the charge that he had possession of these items in circumstances which raised a reasonable presumption that the explosives were intended to be used in a manner prejudicial to public order.
3. In mitigation he stated that he engages in digging wells and that he was going to use the same to blast rocks which proved to be hard.
4. The learned Magistrate did not consider the fact that the accused in mitigation raised a plausible defence to namely that he used the explosives in digging wells. Section 89 (1) of the Penal Code does not preclude such a defence as it provides;
89(1) Any person who, without reasonable excuse, carries or has in his possession or under his control any firearm or other offensive weapon, or any ammunition, incendiary material or explosive in circumstances which raise a reasonable presumption that the firearm, ammunition, offensive weapon, incendiary material or explosive is intended to be used or has recently been used in a manner or for a purpose prejudicial to public order is guilty of an offence and is liable to imprisonment for a term of not less than seven years and not more than fifteen years.[Emphasis mine]
4. As the mitigation raised a plausible defence, the plea was equivocal hence the conviction and sentence are set aside. The appellant shall be retried and shall remain in custody in order to plead before the Kehancha Principal Magistrates Court on 15th May 2015.
DATED and DELIVERED at MIGORI this 14th day of May 2015.
D. S. MAJANJA
JUDGE