[2014] KEHC 6507 (KLR)
The court found that the language used during the proceedings after the plea was not indicated, making it impossible to ascertain whether the appellant understood the facts as read out by the prosecution. The court also noted that the facts presented did not fully support the charge, particularly regarding the items...
Source-derived case information.
- Citation
- [2014] KEHC 6507 (KLR)
- Parties
- Appellant: Raphael Andebe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 89 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; appellant acquitted and released
- Legal Topics
- Plea of Guilty, Equivocal Plea, Burglary and Stealing, Language of Proceedings, Mitigation, Evidence Supporting Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Raphael Andebe
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea of guilty entered by the appellant was unequivocal.
- 2 Whether the language used during the proceedings was clear and understood by the appellant.
- 3 Whether the facts presented supported the charge against the appellant.
Ratio Decidendi
The court found that the language used during the proceedings after the plea was not indicated, making it impossible to ascertain whether the appellant understood the facts as read out by the prosecution. The court also noted that the facts presented did not fully support the charge, particularly regarding the items allegedly stolen and the lack of exhibits produced in court. Furthermore, the mitigation by the appellant was not clear or properly considered. These procedural irregularities rendered the plea of guilty equivocal and the conviction unsafe. Consequently, the appeal was allowed, and the appellant was acquitted and released unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction quashed; appellant acquitted and released
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CRIMINAL APPEAL NO. 89 OF 2012
RAPHAEL ANDEBE.............................................APPELLANT
VERSUS
REPUBLIC........................................................RESPONDENT
(From original conviction and sentence in Criminal Case number 814 of 2012 of the
Principal Magistrate’s Court at Maseno – A.R. Kithinji -PM)
J U D G M E N T
The appellant was charged with the offence of Burglary and Stealing contrary to section 304 (2) and section 279 (b) of the Penal Code.
The particulars were that on the night of 7th and 8th day of March 2012 at Unknown time at Muchula village Essaba sub location, Tongoi location within Vihiga county broke and entered the dwelling house of Phanuel Abisai with intent to steal therein and did steal a bed, assorted house utensils and sofa skeleton, the property of the said Phanuel Abisai all valued at Kshs. 22,000/=.
On his own plea of guilty the appellant was convicted and sentenced to 7 and 4 years respectively.
The appellant has filed 6 grounds which Mr. Nyanga counsel for the appellant argued them strongly.
It must be noted too that prior to the hearing of this appeal the appellant sought and obtained leave to introduce fresh and new evidence. The evidence which were introduced were a probation report as well as an affidavit of one Doris Eboko Indata the grandmother to the appellant.
Respectfully, I do not think that the said evidence were new in any way and even if they were they were not going to aid the appellant as he admitted the facts. He pleaded guilty.
While on the question of plea it has been argued that the same was not equivocal. Looking at the proceedings though I do not agree with the appellant. The trial court clearly indicated the appellant understood the kiswahili language.
However, the subsequent proceedings is where the court failed to indicate the language used. Infact it is not at all clear when the facts were being read which language the court was using. This was on 11-7-2012.
It is again on this date that the appellant was required to mitigate. In his mitigation the language used is not indicated and therefore it is difficult to ascertain whether or not he understood the facts as read out by the prosecution.
When it came to mitigation the appellant state: “I had some problems”.
I do not find this to be a statement that one can call mitigation. The court being a last resort ought to have inquired and gone further than this. As much as I have discredited the further evidence adduced by the appellant it thus appear that there was a land dispute between the appellant and the complainant.
Mitigation always must be clear and unequivocal. Anything that seems unclear can be construed to be a plea of not guilty. In the premises I do not find the mitigation by the appellant to be as clear as expected.
Finally, the appellant argued that the facts did not support the charge. I have perused both and I noticed that the nowhere did the charge talked of a sofaset but a skeleton sofa. Worse there were no exhibits produced in court's
I shall therefore allow the appeal on the grounds that the language used subsequently after plea was not clear and further that the facts did not support the charge. The appellant is acquitted and released unless lawfully held.
Dated, signed and delivered at Kisumu this 3rd day of March, 2014.
H.K. CHEMITEI JUDGE