[2022] KEHC 17166 (KLR)

Rotich v Republic (Criminal Appeal E003 of 2021) [2022] KEHC 17166 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 17166 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Appeal E003 of 2021

AN Ongeri, J

November 11, 2022

Between

Hillary Kiplangat Rotich

Appellant

and

Republic

Respondent

(Being an Appeal from the conviction and sentence of Hon. E.W. KARANI (SRM) IN Kericho CMCR. Case No.550 of 2020 delivered on 26/2/2020)

Judgment

1. The appellant pleaded guilty to a charge of threatening to kill Contrary to section 223 (1) of thePenal Code and he was sentenced to 10 years imprisonment.

2. The particulars of the charge were that on 3/1/2020 at Kalyongwet Village, Kalyongwet Location in Soin-Sigowet Sub-county within Kericho County, the Appellant while armed with a panga threatened to kill Margaret Chumba Khaemba by telling her “I will kill you today”.

3. The Appellant also pleaded guilty to the Second Count of Malicious damage to property Contrary to section 339 (1) of the Penal Code and he was also sentenced to 5 years imprisonment.

4. The particulars of the Second Charge were that on the same material particulars as in Count 1 (above) the appellant unlawfully and willfully destroyed household utensils the property of Margaret Chumba Khaemba.

5. The facts were as follows:-On 31/1/2020, at Kalyongwet Village, the Accused threatened to kill the Complainant. The Accused had just returned home having released from prison on 30/1/2020. He started arguing with his father demanding his share of land so as to sell it and enjoy the proceeds. The Accused Person went to the house where food was cooking and using a pole, he broke a glass on the door using a stick used for fencing. He further demanded to be given his school fees for the Secondary School and University School which he did not proceed to. He also destroyed household items worth Kshs.700/=, properties of the Complainant. The Complainant fled their home and went to spent at a neighbor and later reported to the Police. Later the Accused Person was arrested and charged.

6. The appellant has appealed to this court against the sentence and seeks to have the sentences reduced.

7. The appellant having pleaded guilty to the charges, he has no right of appeal except to the extent or legality of the sentence.

8. Under the provisions of section 348 of the Criminal Procedure Code (cap 75 Laws of Kenya) no appeal is allowed where a person pleads guilty except to the extent or legality of the sentence. The section states as follows; “No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.”

9. The Courts have however come up with scenarios in which the court may allow an appeal on conviction and sentence upon a plea of guilt.

10. The Court of Appeal in Alexander Lukoye MalikavRepublic [2015] EKLR held as follows; “A court may only interfere with a situation where an accused person has pleaded guilty to a charge where the plea is imperfect, ambiguous or unfinished such that the trial court erred in treating it as a plea of guilty. Another situation is where an accused person pleaded guilty as a result of mistake or misapprehension of the facts. An appellate court may also interfere where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to law. Also where upon admitted facts the appellant could not in law have been convicted of the offence charged.”

11. However, in the instant case I find that the plea is unequivocal as it was taken in accordance with the law.

12. In AdanvRepublic[1973] EA 445, the Court of Appeal laid down in the simplest and plainest terms the manner in which pleas of guilty should be recorded and the steps which should be followed. It is appropriate to set out the holding in full —“Held :-i.the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;ii.the accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded;iii.the prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;iv.if the accused does not agree with the facts or raises any question of his guilt his reply must be recorded and change of plea entered;v.if there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused’s reply should be recorded.”

13. The grounds upon which the Court can interfere with the sentence of the Trial Court have been set out in various decisions of the High Court and Court of Appeal.

14. The case of WanjemavRepublic (1971) EA 493 laid down the general principles upon which the first appellate Court may act in dealing with an appeal on sentence. The court stated as follows; “The appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial court did not take into account a relevant fact or that it took into account an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate court must not lose sight of the fact that in sentencing, the trial court exercised discretion and as long as the discretion is exercised judicially and not capriciously, the appellate court should be slow to interfere with that discretion.”

15. The Court of Appeal in Ogolla S/o Owuor V Republic, [1954] EACA 270, pronounced itself on this issue as follows; "The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”

16. The Court of Appeal, on its part, in Bernard Kimani GacheruvRepublic [2002] eKLR restated that; “It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence, unless, any one of the matters already stated is shown to exist.”

17. The mitigation appeal lacks in merit. The charges the appellant is facing are serious and a deterrent sentence is deserved.

18. I dismiss the appeal and uphold both the conviction and sentence.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 11TH DAY OF NOVEMBER, 2022. A. N. ONGERIJUDGE