[2009] KEHC 3933 (KLR)
The court found that the plea of guilty entered by the appellant was not unequivocal, as the words used and the facts narrated did not clearly establish the offence charged. The facts presented by the prosecution were at variance with the charge sheet, particularly regarding the length of the stolen water pipes and...
Source-derived case information.
- Citation
- [2009] KEHC 3933 (KLR)
- Parties
- Appellant: Salim Hare; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 80 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant released
- Judges
- CM Njagi
- Legal Topics
- Plea of Guilty, Sentencing Principles, Variance Between Charge and Facts, First Offender, Extraneous Matters in Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salim Hare
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 facts as narrated by the prosecutor disclosed the criminal acts committed by the appellant.
- 3 Whether the sentence imposed was manifestly excessive considering the circumstances.
Ratio Decidendi
The court found that the plea of guilty entered by the appellant was not unequivocal, as the words used and the facts narrated did not clearly establish the offence charged. The facts presented by the prosecution were at variance with the charge sheet, particularly regarding the length of the stolen water pipes and the involvement of other suspects who were not charged. Furthermore, the sentence imposed was manifestly excessive for a first offender who pleaded guilty, and the trial magistrate improperly considered extraneous matters not supported by evidence. These cumulative errors rendered the conviction unsafe and the sentence unjustified. The appeal was therefore allowed, the...
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant released
Orders
- The appeal is allowed.
- The conviction for stealing is quashed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Criminal Appeal 80 of 2008
SALIM HARE ………….....……………………….….…………... APPELLANT
- Versus -
REPUBLIC …………………………………………………… RESPONDENT
J U D G M E N T
The Appellant, Salim Hare, was charged in the Senior Resident Magistrate’s court, Kwale, with stealing contrary to section 275 of the Penal Code. He was convicted on his own plea of guilty and sentenced to serve 21/2 years imprisonment. He appealed to this court against conviction and sentence.
His grounds of appeal as set out in the amended memorandum of appeal were as follows-
1. That the plea of guilty was notunequivocal.
2. That the sentence of two and a half yearsimprisonment was excessive consideringall the circumstances of the case.
3. That the learned magistrate took intoconsideration extraneous matters insentencing the appellant.
4. That the facts as narrated by the prosecutor
did not disclose the criminal acts committed by the appellant.
At the hearing of the appeal, the appellant appeared in person while the Assistant Director of Public Prosecutions, Mr. Ondari appeared for the Republic. Mr. Ondari conceded the appeal on the grounds that the plea was not unequivocal; that the facts narrated by the prosecutor did not disclose the criminal acts committed by the appellants; and that the sentence was excessive.
A scrutiny of the proceedings before the trial court shows that when the charge was read and explained to the appellant, he replied “Ni kweli” which is Kiswahili for “It is true.” In the case of WANJIRU v. REPUBLIC [1975] EA 5, it was held that the words “it is true” may not amount to a plea of guilty, with the court saying at page 6-
“… We are of the view that the words ‘It is true’ are a poor foundation for a conviction and they ought to be explored in all save the simplest of charges. And where they are relied upon, a court should readily permit a change of plea where the facts are challenged or there is a possibility of a misunderstanding. … It is surely better for a trial to be held than for there to be the possibility of injustice. Of course, each case must depend on its own facts.”
And in EDWARD KAZUNGU MAGEGO v. REPUBLIC Mombasa Cr. App. No. 316 of 1992, Omolo J., as he then was, observed that though the plea is recorded as “It is true”, and the magistrate then proceeds to receive the facts in support of the charge, and if those facts disclose the offence charged, and are unequivocably admitted by the appellant, that would cure the inadequate plea of “It is true.”
In the instant case, after the facts were read out, the appellant’s response was-
“The facts are true. I was with others.”
A closer look at the facts, however, discloses that they are at variance with the charge. Firstly, whereas the charge sheet alleges that the stolen water pipes measured 70 metres in length, the Prosecutor said in his statement of facts that the damaged section was 7. 5 metres. Secondly, the prosecutor further said that the appellant was in the company of some other persons, and that four suspects including the appellant were arrested, and this fact was accepted by the appellant as can be seen from his acknowledgement of the facts. Yet, the appellant was charged alone. What happened to the other three suspects?
Another aspect of the matter was that the learned trial magistrate imposed a sentence of 21/2 years imprisonment out of a maximum sentence of three years. Since the appellant was a first offender, and had offered a plea of guilty, this sentence, bordering on the maximum, was manifestly excessive. Lastly, in sentencing the appellant, the trial magistrate also remarked that many Kenyans are suffering and lack the basic commodity of water because of the accused persons actions. That was a mater extraneous to what was before the court, and was not supported by any evidence.
Against that background, I find that the appeal must succeed, and that Mr. Ondari properly conceded the appeal. The appeal is therefore allowed, the conviction for stealing quashed and the sentence set aside. The appellant is set free forthwith unless otherwise lawfully held.
Dated and delivered at Mombasa this 26th day of March, 2009.
L. NJAGI
JUDGE