[2014] KEHC 351 (KLR)
The court found that the appellant was convicted and sentenced on a duplex charge, which is illegal. The respondent conceded that the charge was inappropriate and the sentence unlawful. The appellant had already served two years in prison on the basis of this illegal charge. Given these circumstances, the court...
Source-derived case information.
- Citation
- [2014] KEHC 351 (KLR)
- Parties
- Appellant: Sakaja Shira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 193 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction and sentence set aside; appellant released unless lawfully held for another offence
- Legal Topics
- House Breaking, Stealing, Duplex Charge, Illegal Sentence, Plea of Guilty
- 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
Sakaja Shira
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge against the appellant was duplex and therefore illegal.
- 2 Whether the conviction and sentence based on a duplex charge should be upheld or set aside.
- 3 Whether the appellant should be set free or a retrial ordered.
Ratio Decidendi
The court found that the appellant was convicted and sentenced on a duplex charge, which is illegal. The respondent conceded that the charge was inappropriate and the sentence unlawful. The appellant had already served two years in prison on the basis of this illegal charge. Given these circumstances, the court exercised its discretion to set the appellant free rather than order a retrial, as the continued incarceration would perpetuate the illegality. The conviction and sentence were therefore set aside, and the appellant was ordered to be released unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction and sentence set aside; appellant released unless lawfully held for another offence
Orders
- The appellant is set free unless lawfully held on some other offence.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISI
CRIMINAL APPEAL NO. 193 OF 2012
SAKAJA SHIRA…………………………………………………....APPELLANT
VERSUS
REPUBLIC…………………………..…………………………RESPONDENT
JUDGMENT
This appeal is brought by one Sakaja Shira. It arises from the original conviction and sentence of the P.M’s court at Kilgoris in Criminal Case No. 573 of 2012, being aggrieved and dissatisfied with both sentence and conviction of five (5) years as was passed thereof on 26. 07. 2012 by Hon. A. K. Mokoross- R.N for the offence of house breaking and stealing contrary to S.304(1) and 279(b) of the Penal Code.
The appellant’s grounds of appeal were set out as follows:-
That I pleaded guilty of the convicted charges at my first day of appearing in court.
That I was treated as a first offender and your honour the sentence be imposed on me was rather on the higher side.
That I was still of tender age and my continued say in prison may impact negatively on my life.
That I was remorseful at the time of committing this offence and now repentant and therefore request your honorable court to grant me leniency as promise to be a good citizen.
That I pray this appeal be considered on the above grounds and the honorable court put me on a non-custodial sentence reduce the sentence to the period already served or any other order that the honorable court may deem fit.
The respondents response was as follows:- The charge sheet herein was duplex i.e. two charges is one count. This, in my view, is inappropriate the appellant was, accordingly, sentenced two years for stealing and three years for house breaking. The sentence was to run concurrently.
This is illegal, thus I am constrained to concede to this appeal. The appellant pleaded guilty to what is prima facie an illegal charge. He was convicted on 26th July, 2012. He has been in prison, now, for two years.
From the concession by the prosecutor that the charge with which the appellant was charged was, in their view, duplex and thus illegal. The court finds that the appellant who has been in prison for now two years has been serving what appears to be an illegal sentence. The court has a discretion either to set the appellant free and/or order for a re-trial before a different magistrate.
This court feels that since has served already two years arising from an illegal charge, the best for the appellant is to be set free, which I hereby do, unless he is lawfully held on some other offence.
It is so ordered.
Judgment dated and delivered at KISII this 19th day of December, 2014.
C.B. NAGILLAH,
JUDGE.
In the presence:-
Appellant in person.
Otieno for the respondent
Edwin Mongare Court Clerk.