[2008] KEHC 466 (KLR)
The court found that the applicant's plea of guilty was not properly taken, as he was not asked to admit or deny the facts after they were read out to him. This procedural irregularity rendered the plea equivocal and invalid. Although both counsel were mistaken about the applicable maximum sentence under Section...
Source-derived case information.
- Citation
- [2008] KEHC 466 (KLR)
- Parties
- Applicant: Patrick Mwandikwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 111 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Bail Pending Appeal and Sentence Review
- Outcome
- conviction quashed and sentence set aside
- Judges
- DK Maraga
- Legal Topics
- Bail Pending Appeal, Plea Taking Procedure, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Mwandikwa
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Bail Pending Appeal and Sentence Review
Legal Issues
- 1 Whether the sentence imposed exceeded the statutory maximum under the Traffic Act.
- 2 Whether the applicant's plea of guilty was unequivocal and properly taken.
Ratio Decidendi
The court found that the applicant's plea of guilty was not properly taken, as he was not asked to admit or deny the facts after they were read out to him. This procedural irregularity rendered the plea equivocal and invalid. Although both counsel were mistaken about the applicable maximum sentence under Section 58(1) of the Traffic Act, the court clarified that the current law allows for a sentence of up to Kshs.400,000/-. However, the conviction and sentence could not stand due to the improper plea-taking process. Exercising its revisionary jurisdiction under Section 362 of the Criminal Procedure Code, the court quashed the conviction and set aside the sentence, ordering a refund of any...
Court Disposition
conviction quashed and sentence set aside
Orders
- The conviction is quashed and the sentence set aside.
- If the applicant has paid the fine, it shall be refunded forthwith.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA\
IN THE HIGH COURT OF KENYA
AT NAKURU
Misc Crim Appli 111 of 2008
PATRICK MWANDIKWA……………………..APPLICANT
VERSUS
REPUBLIC……………………….…………RESPONDENT
RULING
PATRICK MWANDIKWA, the applicant was, upon his own plea of guilty to charge of driving unroadworthy motor vehicle on a public road contrary to Section 55(1) as read with Section 58(1) of the Traffic Act, convicted and sentenced to fine of Kshs.150,000/-. He has appealed against both that conviction and sentence. Before the appeal can be heard he has applied under Sections 365 and 357 of the Criminal Procedure Code to be granted bail pending appeal.
When the matter came before me this morning, Mr. Njuguna for the applicant, instead of arguing the application urged me to review the sentence and set it aside on the ground that the sentence of Kshs.150,000/- meted to the applicant is illegal. He said that Section 58(1) of the Traffic Act under which the applicant was charged provides for a maximum sentence of Kshs.20,000/-. Mr. Mugambi for the state concurred with that view.
I have perused the provisions of Section 58(1) of the Traffic Act and noted that both counsel were labouring under the old provisions of that Section which provided for a maximum sentence of Kshs.20,000/-. The new provisions of that section provide for a sentence of upto Kshs.400,000/-. So I cannot review the sentence as submitted by counsel.
However, upon perusal of the proceedings I have noted that the applicant’s plea was not properly taken. When the facts were read out to him he was not asked to admit or deny them. His purported plea of guilty cannot therefore be said to have been unequivocal. As this clear on the court record which is before me there is no point of allowing the applicant to take us through the rigmarole of an appeal. It will be at the end of the day be allowed on that ground. In the circumstances and pursuant to the revisionary powers conferred upon me by Section 362 of the Criminal Procedure Code I hereby quash the conviction and set aside the sentence. If the applicant has paid the fine the same should be refunded to him forthwith. If however, he is in prison he shall be set free forthwith unless otherwise lawfully held.
DATED and delivered at Nakuru this 18th day of December, 2008.
D. K. MARAGA
JUDGE