https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11550

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **CRIMINAL APPEAL NO. E043 OF 2023** **ORIGINAL CR. CASE NO. 2602 OF 2016 AT PM’S COURT ELDORET** **NATHAN KIPKOECH BIWOTT ........................................ APPELLANT** **=VERSUS=** **REPUBLIC .................................................................. RESPONDENT** ***(This being an appeal against conviction and sentence from the Judgment of at Eldoret PM's Court dated 27th April 2016.)*** **JUDGEMENT** 1. Before this Court is a Petition of Appeal filed on 9th October 2024. Having obtained leave to appeal out of time in Miscellaneous Application No. 105 of 2016, the Appellant challenges both the conviction and sentence. In summary, the Appellant contends that the plea of guilty was not unequivocal, that the language used during plea-taking was not clear to him, and that he was not duly cautioned before entering the plea. He further sought copies of the trial Court proceedings and judgment and prays that the appeal be allowed, the conviction quashed, the sentence set aside, and that he be set at liberty. 2. Having been dissatisfied and aggrieved by the aforesaid judgment, the Appellant appealed against the decision of the learned trial Magistrate, where he was charged with 3 counts of the offence House breaking and stealing contrary to Section 304 (1), (b) of the Penal Code and he convicted and sentenced to serve 21 years imprisonment. His application is based on grounds that the Appellant contends that the trial magistrate erred in law and fact by convicting on an equivocal plea of guilty, imposing a harsh and excessive sentence, and finding the Appellant guilty despite the prosecution's failure to discharge its burden of proof. The Appellant further seeks to be furnished with certified copies of the trial Court proceedings and judgment, reserves the right to file additional grounds of appeal, and requests to be present during the hearing and determination of the appeal. 3. The Respondent opposed the appeal and submitted that the Appellant was properly convicted on his own unequivocal plea of guilty to three counts of shop breaking and stealing contrary to Section 306(a) of the Penal Code, together with the related charge of being in possession of suspected stolen property contrary to Section 323 of the Penal Code. That the plea-taking process complied with the law. 1. The Respondent relied on *Adan v Republic (1973) EA 445*, as reaffirmed in *John Muendo Musau v Republic [2023] KECA 266 (KLR)*, which sets out the mandatory procedure for recording a plea of guilty under Section 207 of the Criminal Procedure Code: * The charge and its ingredients must be explained in a language understood by the accused; * The accused's own words admitting the charge must be recorded; * The prosecution must state the facts; * The accused must be given an opportunity to dispute or explain those facts; * If the accused disputes any essential ingredient, a plea of not guilty must be entered; otherwise, conviction follows. * The Respondent submitted that the Appellant confirmed the charges and the facts in Kiswahili, admitted every count, and during mitigation merely sought forgiveness without disputing any element of the offences. Consequently, the plea was unequivocal. 2. The appeal against conviction is barred by law. 3. Reliance was placed on Section 348 of the Criminal Procedure Code, which limits appeals following a conviction on a guilty plea to matters concerning the legality or extent of the sentence, unless the plea was not unequivocal. 4. The prosecution discharged its burden of proof. 5. Since the Appellant pleaded guilty, there was no requirement for a full trial. The prosecution nevertheless outlined the facts, produced the recovered exhibits, and the Appellant admitted those facts without explanation or objection. 6. The sentence was lawful and proportionate. 7. The Respondent submitted that: 1. The offence under Section 306(a) of the Penal Code carries a maximum sentence of seven years' imprisonment; 2. The offence under Section 323 of the penal code attracts a maximum sentence of two years' imprisonment. 8. The trial Court imposed three years' imprisonment on each count, which was well within the statutory limits. 4. Applicable sentencing principles. 5. The Respondent relied on *Thomas Mwamba Wenji v Republic*, which adopted the principles in *Alister Anthony Pareira v State of Maharashtra*, namely that sentencing should be: * 1. proportionate to the gravity of the offence; 2. guided by the objectives of deterrence and rehabilitation; 3. determined by the circumstances of each case, including the nature of the offence, the manner of its commission, and all relevant mitigating and aggravating factors. 6. At the hearing, the Appellant abandoned other grounds of appeal and sought reduction of the sentence. 7. I have considered the sentences herein where the Appellant was sentence to 3 years imprisonment on each limb of the offence of house breaking and stealing in the 3 counts giving a total of 18 years and 3 years imprisonment in respect of count IV for the offence of having suspected stolen property. The value of all the properties involved was less than 20,000. 8. Looked at cumulatively the sentences were manifestly harsh and excessive. 9. At the hearing of the appeal, the Appellant expressly abandoned all the grounds challenging the conviction and confined his appeal to the question of sentence. In view of that concession, and having perused the record of the trial Court, I am satisfied that the conviction was founded upon an unequivocal plea of guilty and therefore decline to interfere with the conviction. The only issue falling for determination is whether this Court should interfere with the sentence imposed. 10. It is now settled that sentencing is a matter resting in the discretion of the trial Court. An appellate Court will not ordinarily interfere with that discretion unless it is demonstrated that the trial Court acted on a wrong principle, overlooked a material factor, considered an irrelevant factor, imposed an unlawful sentence, or that the sentence is manifestly excessive in the circumstances. See *Wanjema v Republic* [1971] EA 493 and *Bernard Kimani Gacheru v Republic* [2002] eKLR. 11. The record shows that the Appellant was sentenced to three (3) years' imprisonment on each limb of the offence of housebreaking and stealing in each of the three counts, resulting in an aggregate custodial sentence of eighteen (18) years. He was further sentenced to three (3) years' imprisonment in respect of Count IV for being in possession of suspected stolen property. The cumulative effect of the sentences was therefore an imprisonment term of twenty-one (21) years. 12. While each individual sentence fell within the statutory limits prescribed by the Penal Code, the cumulative sentence must nevertheless be proportionate to the overall criminality disclosed by the offences. The offences arose from related incidents involving property whose combined value was less than Kshs. 20,000. There was no violence used, no injury occasioned to any person, and no exceptional aggravating circumstances disclosed on the record to justify the cumulative custodial term imposed. 13. The principle of totality requires a sentencing Court, where multiple custodial sentences are imposed, to stand back and consider whether the aggregate sentence is just and proportionate to the offending behaviour. Although consecutive sentences may be legally permissible, they should not produce a crushing or disproportionate punishment that exceeds what is necessary to meet the objectives of sentencing. 14. Having considered the nature of the offences, the value of the property involved, the Appellant's plea of guilty, and the period already served, I am persuaded that the cumulative sentence imposed by the trial Court was manifestly harsh and excessive and warrants interference by this Court. 15. The Appellant has now been in custody for approximately ten (10) years and three (3) months. In the circumstances of this case, that period constitutes sufficient punishment and adequately serves the objectives of sentencing, including retribution, deterrence, rehabilitation and denunciation of criminal conduct. 16. Accordingly, the appeal against conviction is dismissed. The appeal against sentence succeeds to the extent that the sentence imposed by the trial Court is hereby set aside and substituted with a sentence equivalent to the period already served. 17. Consequently, the Appellant shall be released from prison forthwith unless he is otherwise lawfully held under any other warrant. **DATED SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF JULY 2026** **A.K. NDUNG’U** **JUDGE**