[2014] KEHC 793 (KLR)
The court found that the appellants were properly informed of the charges and had the opportunity to reconsider their plea after the charge sheet was amended. Both appellants pleaded guilty after the amendment and did not qualify their plea during mitigation, instead seeking leniency. The court held that the plea...
Source-derived case information.
- Citation
- [2014] KEHC 793 (KLR)
- Parties
- Appellant: Moses Otieno Awino; Appellant: Nickson Omondi Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 52 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- HK Chemitei
- Legal Topics
- Plea Taking, Sentencing Principles, Possession of Forgery Materials
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Otieno Awino
Appellant
Nickson Omondi Ochieng
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea entered by the appellants was unequivocal and valid.
- 2 Whether the sentence imposed was excessive or based on wrong principles of law.
Ratio Decidendi
The court found that the appellants were properly informed of the charges and had the opportunity to reconsider their plea after the charge sheet was amended. Both appellants pleaded guilty after the amendment and did not qualify their plea during mitigation, instead seeking leniency. The court held that the plea was unequivocal and valid. Regarding the sentence, the statutory maximum was seven years, but the trial court imposed four years, which was not excessive or based on wrong principles. The appellate court found no reason to interfere with the conviction or sentence and dismissed the appeal.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The conviction and sentence of four years imprisonment for each appellant are upheld.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL APPEAL NO. 52 OF 2014
MOSES OTIENO AWINO..........................................................1ST APPELLANT
NICKSON OMONDI OCHIENG.................................................2ND APPELLANT
VERSUS
REPUBLIC.......................................................................................RESPONDENT
[From original conviction and sentence in the Principal Magistrate’s Court at Tamu Criminal Case No. 140 of 2014]
J U D G M E N T
The appellants were charged with the offence of Possessing Papers for forgery contrary to section 367 (a) of the Penal Code (cap 63 Laws of Kenya).
The particulars were that on the 20th March 2014 at Koru area in Muhoroni District within Kisumu County, without lawful authority or excuse, knowingly had in possession 173 paper intended to resemble and pass as Special Papers such as provided and used in making Kshs. 1000/= currency note.
Both appellants pleaded guilty and were sentenced to 4 years imprisonment each hence this appeal. They have filed 9 grounds of appeal but Mr. Onyango counsel for the appellants condensed them into three.
The first ground is that the plea unequivocal and that had the trial court taken this into consideration the plea of guilty ought not to have been entered. Counsel argued that the appellant although they pleaded guilty by saying “it is not true”, that did not amount to an admission of the charge.
He further argued that the sentence was excessive in the circumstances taking into account that the appellants were first time offenders. He argued that the trial court did not take into consideration the probation report.
On his part the learned state counsel agreed with the trial court. He supported the conviction and the charge.
This court's duty is to reevaluate afresh the proceedings and the judgment and come with afresh independent decision taking into consideration that it did not have the benefit of conducting the trial. See Okeno -VS- Republic [1973] EA 32. Having carefully perused the proceedings, it is clear that when the charge was read to the appellants on 20-3-2014 the appellants pleaded guilty and the facts were reread the following day, that is 21-3-2014. The following day the prosecution amended the charge sheet to read 19-3-2014 instead of 20-3-2014. The same was read over to the appellants and they pleaded guilty. The prosecution read the facts and both of them pleaded guilty. On mitigation the 1st appellant prayed for forgiveness and leniency. The 2nd appellant on his mitigation equally asked for leniency.
My understanding therefore is that I do not find any sufficient evidence that the appellants failed to understand the charge facing them. Infact they slept over it and on the following day save for the changes on the date in the charge sheet by the prosecution nothing significantly changed. Further, even after the date was changed the appellants were still granted the opportunity to plead which they did.
Although the 2nd appellant gave an explanation during mitigation of how they got into the car, he …..............went ahead to plead for leniency. It would have been difficult if after reading of the facts apart from pleading guilty he goes ahead to qualify. That would have amounted to unequivocal plea.
In the process I do agree with the learned state counsel that section 348 of the Criminal Procedure Code pre...... the appellants from arguing otherwise. The plea I find was equivocal.
Was the sentence excessive? The Acts stipulates 7 years custodial sentence but the trial court did mete out 4 years. This court will only interfere with the sentence if the same was excessive or inordinately high and that the court arrived at it based on wrong principles of law. The court's discretion is normally allowed during the sentencing. I do not find that the 4 years meted out against the appellants was excessive nor do I find that the court exercised its discretion unfairly.
In the circumstances, I do not find this appeal meritorious and the same is dismissed.
Dated, signed and delivered at Kisumu this 16th day of December, 2014.
H.K. CHEMITEI
JUDGE