[1983] KEHC 15 (KLR)
The court found that although the appellant pleaded guilty, the facts as stated by the prosecution did not fully support a conviction for burglary, as the timing of the complainant's return was not specified. Therefore, the conviction for burglary was substituted with housebreaking, which does not carry a mandatory...
Source-derived case information.
- Citation
- [1983] KEHC 15 (KLR)
- Parties
- Appellant: Peter Kiamba Mbungo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 556 & 557 of 1982
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- JHS Todd
- Legal Topics
- Plea of Guilty, Burglary, Housebreaking, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kiamba Mbungo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's plea of guilty was unequivocal and properly recorded.
- 2 Whether the conviction for burglary should be substituted with housebreaking.
- 3 Whether the sentence imposed was lawful and appropriate.
Ratio Decidendi
The court found that although the appellant pleaded guilty, the facts as stated by the prosecution did not fully support a conviction for burglary, as the timing of the complainant's return was not specified. Therefore, the conviction for burglary was substituted with housebreaking, which does not carry a mandatory sentence of corporal punishment. The sentence was adjusted to three years' imprisonment on each limb of the charge to run concurrently, with six strokes of corporal punishment only for the theft from a dwelling house. The court held that the sentence was not excessive given the circumstances and the value of the property involved. The appeal against conviction and sentence was...
Court Disposition
appeal dismissed
Orders
- Conviction for burglary substituted with housebreaking.
- Sentence adjusted to three years' imprisonment on each limb of the charge to run concurrently.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CRIMINAL APPEALS NOS. 556 & 557 OF 1982
PETER KIAMBA MBUNGO ………..…….……APPELLANT
VERSUS
REPUBLIC………………………………..…..RESPONDENT
JUDGMENT
The appellant, Peter Kiamba Mbungo, has appealed against sentence in two cases in which he pleaded guilty and so the two criminal appeal cases being No 556/82 and No 557/82 are consolidated.
It is observed in criminal appeal number 556/82 that the appellant was charged with burglary and stealing from dwelling house contrary to sections 304(2) and 279(b) of the Penal Code (cap 63) to which he said, when the substance of the charge and every element of it was read and explained to him and which he understood was:
“It is true”
Had the matter remained here I would have had some doubts as to whether or not the appellant’s plea could really be called an unequivocal plea of guilty to the charge. See: Hando s/o Akunaay v R(1951) 18 EACA 308 in which it was said:
“Before convicting on any such plea of guilty it is highly desirable not only that every constituent of the charge should be explained to the accused, but that he should be required to admit or deny every such constituent”
and by R v Yonasani Egalu & others(1942) 9 EACA 65.
Most of what he says should be recorded in a form which will satisfy an appeal court that he fully understood the charge and pleaded guilty to every element of it unequivocally and in R v Yekoyasi Okedi s/o Akagye (1944) 11 EACA 110 it was said:
“The actual words used by an accused in pleading guilty to a charge should be recorded verbatim but of course translated into English.’
In this case however the prosecution stated the facts to the court with which the appellant agreed but though the prosecutor said that on May 5, 1982 at 8. 00 pm the complainant locked her house and went to sleep in her mother’s house he did not say when the complainant returned to her house on the following morning which, of course, could have been halfpast six o’clock in the morning, I must I think, which I hereby do substitute a conviction for housebreaking in place of burglary and I think the sentence imposed must also be altered, because if for nothing else, a charge of housebreaking does not carry a mandatory sentence of corporal punishment. I therefore substitute for the sentence imposed by the learned magistrate in respect of the charge in this case a sentence of three (3) years’ imprisonment on each limb of the charge to run concurrently and the appellant will suffer six strokes of corporal punishment on the charge concerning theft from a dwelling house, that the failure to treat PW 1 as a possible accomplice has not occasioned a failure of justice and that it would be wrong to interfere with this case.
The appellant was imprisoned for one year where the maximum in respect of this offence is two years. In other cases with which I have dealt arising out of the disturbances on August 1, 1982 the sentences which have been passed and confirmed on appeal have been the maximum. In those circumstances and in view of the type and value of the property which was found being conveyed by the appellant it cannot be said that the sentence passed by the learned district magistrate was excessive although he was not entitled to impose strokes and that matter has already been dealt with on revision at the application of the district magistrate himself.
Accordingly for the reasons I have given above, this appeal against conviction and sentence will be dismissed.
Dated and Delivered at Nairobi this 4th Day of March, 1983
J.H.S. TODD
……………..
JUDGE