[2016] KEHC 2228 (KLR)
The court held that although the trial court record did not show that the appellant was warned of the consequences of pleading guilty to an offence carrying a mandatory minimum sentence, the appellant expressly stated on appeal that he did not challenge the conviction, only the sentence. The sentence imposed was the...
Source-derived case information.
- Citation
- [2016] KEHC 2228 (KLR)
- Parties
- Appellant: Rashid Makeba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 33 of 2015
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- appeal dismissed
- Legal Topics
- Sentencing Principles, Plea of Guilty, Minimum Sentence, Repeat Offender
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rashid Makeba
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence imposed on the appellant was harsh or excessive in the circumstances.
- 2 Whether the trial court complied with the requirement to warn the accused of the consequences of pleading guilty to an offence with a mandatory minimum sentence.
Ratio Decidendi
The court held that although the trial court record did not show that the appellant was warned of the consequences of pleading guilty to an offence carrying a mandatory minimum sentence, the appellant expressly stated on appeal that he did not challenge the conviction, only the sentence. The sentence imposed was the statutory minimum of 7 years, and the appellant's status as a repeat offender with prior convictions for related offences further justified the sentence. The court found no basis to interfere with the sentence, as it was lawful and appropriate in the circumstances.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL APPEAL NO. 33 OF 2015
RASHID MAKEBA .................................... APPELLANT
VERSUS
REPUBLIC..................................................RESPONDENT
(Appeal against sentence of Hon. Miss Ndungu Chief Magistrate in CM Criminal Case no. 1404 of 2014)
JUDGMENT
1. The Appeal before me is against sentence only. Rashid Makeba(The Appellant) is serving a prison term of 7 years after a conviction was entered against him for the offence of Preparation to commit a felony contrary to Section 308 (a) of the Penal Code.
2. In this Appeal, the Appellant seeks a reduction of sentence. He says he is remorseful and undertaking vocational course while serving. That he is the sole breadwinner to his family. That he is suffering multiple illnesses that requires close monitoring and treatment. He generally, is of the view that the punishment is harsh.
3. The State Counsel told Court that the sentence imposed was the minimum sentence prescribed by the law and therefore lawful. He however thought that the conviction was vitiated because the learned magistrate failed to warn the accused person of the implication of pleading guilty.
4. An offender for the Crime under Section 308(1) of The Penal Code is liable to minimum imprisonment for a term of not less 7 years and not more than 15 years. Since, the minimum sentence is a custodial and for a substantial term, it is without doubt, a harsh sentence. The ends of justice would require that a person intending to plead Guilty to that offence should fully understand the consequence of that decision. The Magistrate taking plea should warn the Accused person of the consequences and the Court Record must show that the warning was given and the Accused Person understood the consequences of the plea.
5. The Court record before the Trial Court in the matter before me does not show that a warning was issued and if the Appellant had challenged the plea then this Court would have, without hesitation, quashed it. But the Appellant has submitted
“That my lordship I do not challenge the conviction but do challenge the sentence imposed by the learned magistrate.”
At the hearing of the Appeal, the Appellant was well aware of the penalty that his conviction attracts and still chose not to question the Plea. This Court is therefore of the view that it should not interfere with the conviction.
6. As pointed out earlier the minimum sentence prescribed by the law for the Offence under Section 308(1) is a jail term of 7 years. This minimum sentence is what the Learned Magistrate imposed. In that sense the sentence was lawful. And the antecedents of the Appellant did not help matters. The Appellant was a repeat offender and had been convicted for an offence related to stealing and sentenced to serve 5 years imprisonment. In the circumstances, I am unable to say that the Appellant was undeserving of the Sentence imposed.
7. The Appeal is dismissed.
Dated and signed at Busia this 27th day of MAY 2016.
F. TUIYOTT
J U D G E
Delivered on this 14th day of JUNE 2016
W. KORIR
J U D G E
In the presence of :-
ORWASA- C/Assistant
Obiri - . for the State
Appellant in person