[2022] KEHC 631 (KLR)

Maru v ODPP/Republic (Civil Appeal 002 of 2021) [2022] KEHC 631 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 631 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Civil Appeal 002 of 2021

RN Nyakundi, J

May 19, 2022

Between

Kelvin Maru

Appellant

and

ODPP/Republic

Respondent

(Being an Appeal from the conviction and sentence of Hon. D.A Ocharo (PM) dated and delivered on the 14th day of January 2021 in Kapsabet SPMCR no. E096 of 2021)

Judgment

1. The appellant herein was charged with the offence of stealing a motorcycle contrary to section 278(a) of the Penal Code.

2. The particulars of the offence are that on the 1st day of January 2021 at Sigot village in Sigot location within Nandi County stole a motorcycle registration number KMDN 984N make Kingbird chassis number LRYPCKLCOXEOA01765 engine number 162FMJ82401765, red in colour valued at kshs. 95,000/- the property of Kelvin Kiprop.

3. The appellant pleaded guilty and was sentenced to five years’ imprisonment. The appellant being dissatisfied with the decision filed an appeal against the conviction and sentence vide a memorandum of appeal based on the following grounds;

4. That the Learned trial magistrate erred in law and in fact by failing to evaluate the evidence before him thus reaching the erroneous decision.

5. That the Learned trial magistrate erred in law and in fact by conducting proceedings in a language the appellant did not understand and/or failing to avail the appellant the facility of interpretation in the language of his choice and understanding thus occasioning miscarriage of justice.

6. That the trial magistrate erred in law by engaging into speculation as a basis of conviction and sentence against the appellant

7. That the trial magistrate erred in law and fact by not properly evaluating that the particulars of the charge and the facts were at variance.

8. That the trial magistrate erred in law and fact by finding out that the facts read to the appellant disclosed the offence of stealing.

9. That the trial magistrate erred in law and fact by failing to appreciate that the charges facing the accused person were erroneous misleading and thus defective.

10. It is the appellant’s case that the appellant was arrested by members of the public and handed over to the police in Kabiyet. Thus, the people who arrested the appellant are not those contemplated in section 26 of the CPC. No evidence was adduced to show that the motorcycle was not the appellant’s or suggesting that the property was stolen. The proceedings do not show that the appellant was given an opportunity to explain or give an account suggesting that the property was stolen. The law requires that the appellant give an account to the satisfaction of the court of how he came by the same.

11. The appellant submitted that the sentence ‘ni kweli’ does not amount to an admission as it is ambiguous. The purported offence is deemed to have been committed after the explanation and not at the time of detention, arrest or plea taking. He cited the case of Charo v R(1982) KLR 1 and the case of Joseph Khakavo & another v Republic (2007) eKLR and submitted that the proceedings leading to the appellant’s conviction and sentencing were defective, marred with irregularities and ought to be quashed.

12. The proceedings suggest that the appellant used Swahili language in taking plea but there is no evidence on record of the same. The trial court failed to be consistent in the language and therefore the appellant was prejudiced.

13. The appellant submitted that section 323 does not provide for the punishment of the offence contained therein. The only section that ought to have been read with section 36 of the penal code which contains the general punishment for a misdemeanour being imprisonment for a term not exceeding two years. The trial magistrate sentenced the appellant to 3 years without any legal basis. He prayed the appeal be allowed.

Respondent’s Case 14. It is the respondent’s case that the appellant was convicted of his own plea of guilt which was unequivocal. The proceedings clearly indicate the elements of the charge were read to him in Swahili language and he responded by saying ‘ni kweli’ meaning it is true.

15. The respondent cited the case of Charles Nyaga Mwiti v RHCCRA 16 of 2019 which states when an appellate court can interfere with the plea of guilty and submitted that the elements therein were not experienced in the foregoing case.

16. Section 278(a) of the penal code calls for a penalty of seven years when a person is found guilty of the offence of stealing a motor vehicle or motor cycle. The learned magistrate meted out a penalty of five years and not the maximum.

17. The element of proving the case beyond reasonable doubt does not arise in this case as the appellant pleaded guilty.

18. Upon perusing the submissions, pleadings and the record of appeal I have identified the following issue for determination;

Issues for DeterminationWhether the sentence and conviction on a plea of guilty should be overturnedWhether the charges were defectiveWhether the appellant was prejudiced by the language usedWhether the sentence was unlawful

Whether the sentence and Conviction on aplea of guilty should be overturned 19. Section 348 of the CPC states: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.

20. In Alexander Lukoye Malika v Republic[2015] eKLR the Court of Appeal identified the situations in which a conviction based on a plea of guilty can be interfered with as follows:A court may only interfere with a situation where an accused person has pleaded guilty to a charge where the plea is imperfect, ambiguous or unfinished such that the trial court erred in treating it as a plea of guilty. Another situation is where an accused person pleaded guilty as a result of mistake or misapprehension of the facts. An appellate court may also interfere where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to law. Also where upon admitted facts the Appellant could not in law have been convicted of the offence charged.

21. The appellant has not shown that the plea is ambiguous or that it was as a result of a mistake. The charges clearly laid out a disclosed offence in law and therefore the appellant has not met this threshold. The conviction based on the plea of guilty cannot be overturned.

Whether the charges were Defective 22. I note that the appellant constantly refers to charges under section 323 of the penal code whereas in the present appeal, the charges in the lower court were stealing a motorcycle contrary to section 278(a) of the Penal Code. That notwithstanding, the requirements for a charge to be considered defective were set out in Court of Appeal case of Yongo vs Republic[1983] KLR, 319 where the court held that a charge that is not disclosed by evidence is defective and stated as follows in this regard:In our opinion a charge is defective under Section 214(1) of the Criminal Procedure Code where:(a)it does not accord with the evidence in committal proceedings because of inaccuracies or deficiencies in the charge or because it charges offences in the charge not disclosed in such evidence or fails to charge an offence which the evidence in the committal proceedings discloses; or(b)it does not, for such reasons, accord with the evidence given at the trial; or(c)it gives a misdescription of the alleged offence in its particulars.

23. A reading of the charge sheet determined that it contained the statement of the specific offence and the particulars that are necessary for giving reasonable information as to the nature of the offence he had been accused of. Given that the appellant pleaded guilty the court did not have an opportunity to assess the evidence therefore the charge sheet’s defectiveness based on the evidence that was to be laid before the court. I therefore find that the charge sheet was not defective.

Whether the Appellant was prejudiced by the language used 24. Upon perusing the proceedings, it is evident that the appellant had the charges read to him in Kiswahili and he admitted the charge in Kiswahili. He has not proven that he was prejudiced by the use of Swahili and from the proceedings it is clear that he did not ask for an interpreter. I find that he was not prejudiced by the language used.

Whether the Sentence was Unlawful 25. Section 278A of the Penal Code provides;If the thing stolen is a motor vehicle within the meaning of the Traffic Act, the offender is liable to imprisonment for seven years.The appellant was sentenced to four years which is within the provisions of the penal code. The sentence was lawful.

26. In the premises, the appeal fails in its entirety and is dismissed accordingly.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 19TH DAY OF MAY, 2022. ............................R. NYAKUNDIJUDGEIn the presence of:Mr Mark Mugun for the state