[1984] KEHC 18 (KLR)
The court held that the appellant was entitled to change his plea to not guilty before sentence was passed. The refusal by the Senior Resident Magistrate to accept the change of plea was a procedural error. The correct procedure for recording a plea of guilty and the steps to be taken were set out in Adan v R [1973]...
Source-derived case information.
- Citation
- [1984] KEHC 18 (KLR)
- Parties
- Appellant: Munguti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1815 of 1984
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Legal Topics
- Plea Procedure, Change of Plea, Housebreaking, Stealing From Dwelling, Sentencing, Conviction Quashing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Munguti
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was entitled to change his plea before sentencing.
- 2 Whether the refusal to accept the change of plea rendered the conviction unsafe.
Ratio Decidendi
The court held that the appellant was entitled to change his plea to not guilty before sentence was passed. The refusal by the Senior Resident Magistrate to accept the change of plea was a procedural error. The correct procedure for recording a plea of guilty and the steps to be taken were set out in Adan v R [1973] EA 445. Since the appellant was denied the right to change his plea, the conviction was unsafe. The appeal was allowed, the conviction quashed, and the sentence set aside. The appellant was to be set free unless otherwise lawfully held, but the prosecution retained the liberty to re-arrest and charge him afresh with the original offence.
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO. 1815 OF 1984
MUNGUTI.......................................................................APPELLANT
VERSUS
REPUBLIC..................................................................RESPONDENT
(Appeal from the conviction of the Second Class District Magistrate’s court at Machakos, D Konya Esq and the sentence of the Senior Resident Magistrate at Machakos, L B Ouma Esq)
JUDGMENT
The appellant was convicted on what appeared as a plea of guilty, on a charge of housebreaking and stealing contrary to sections 304 (1) and 279 (b) of the Penal Code. For housebreaking contrary to section 304 (1) of the Penal Code, the appellant was sentenced to five years' imprisonment and for stealing from a dwelling house contrary to section 279 (b) of the Penal Code, he was sentenced to five years’ imprisonment with 10 stokes of the cane.
The record of the lower court shows that on October 1, 1983, when the appellant (and others) appeared for plea, he denied the charge but on November 7, 1983, he said:
“I wish to change my plea and admit to the charge”.
Then on the November 22, 1983 the appellant appeared before the learned Second Class District Magistrate, Mr D Konya, when the facts were narrated to the court and appellant admitted the facts to be all true. He was then convicted.
When the appellant was referred to the learned Senior Resident Magistrate for sentence, he told the learned Senior Resident Magistrate:
“I wish to change my plea to that of not guilty”
This change of plea was refused and so the appellant was sentenced.
The learned State Counsel, Miss Mbarire, did not support conviction as the plea was not unequivocal.
Having considered the record of the lower court, I am satisfied that the learned Second Class District Magistrate, Mr Konya, followed the correct procedure until he referred the case to the learned Senior Resident Magistrate. The only error was on the part of the Senior Resident Magistrate, who refused to accept the appellant’s change of plea.
The manner of recording a plea of guilty and steps to be taken were set out in Adan v R[1973] EA 445 at p 446.
Since the appellant was entitled to change his plea before sentence and as he was denied that right, I have no alternative but to allow their appeal. Hence, the conviction is quashed and sentence set aside. The appellant is to be set free unless otherwise lawfully held. The prosecution is of course, at liberty to re-arrest the appellant and charge him afresh with the original offence. Order accordingly.
Dated and Delivered at Nairobi this 14th day of December 1984.
E.O.O'KUBASU
JUDGE