REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E020 OF 2025
DANIEL WAFULA ………………………………….……………APPELLANT
VERSUS
REPUBLIC………………………………………………........RESPONDENT
(Being an appeal from the original conviction and sentence in the Senior Principal Magistrate Court at Kimilili in Criminal case No. E028 of 2025 dated and delivered on 24th January 2025 –Hon. J.P.Nandi-SPM)
JUDGEMENT
A. BACKGROUND
1. This is an appeal filed by the Appellant herein against his conviction and sentence. The Appellant was charged with the offence of burglary contrary to Section 304(2) of the Penal Code and stealing contrary to Section 279(b) of the Penal Code. In the alternative, he faced the charge of handling stolen goods contrary to Section 322(1) of the Penal Code.
2. The particulars of the main count were that on 21st January 2025, at Matili area in Kimilili Sub-County within Bungoma County, the Appellant broke and entered the dwelling house of one Ian Nabachanja Wekhomba and therein stole 3 sufurias, 2 duvets, 1 blanket, 1 pair of shoes, 6kg power gas cylinder, 4 cups, 1 mattress, cash amounting to Kshs 7,000/= and a home theater, all valued at Kshs 36,100/=.
3. The Appellant pleaded guilty to the offence of burglary and stealing as charged in the main count and was convicted on his own plea of guilt. He was then sentenced to serve four (4) years imprisonment for the offence of burglary and he was sentenced to serve three (3) years imprisonment for the offence of stealing. The trial Court ordered for the two sentences to run concurrently.
B. APPEAL
4. Despite being convicted on his own plea of guilty, the Appellant preferred this appeal stating that he was aggrieved by both the conviction and sentence meted out against him by the trial Court.
5. Based on the foregoing grounds, the Appellant thus prayed for this appeal to be allowed by quashing his conviction and setting aside his sentence, and the case be remitted for retrial.
6. The appeal was canvassed by way of written submissions. Both parties complied with the Court directives.
C. ISSUES FOR DETERMINATION
7. This Court has considered this appeal and the response made. The main issues that arise for this Court to determine are as follows:
i. Whether the Appellant’s plea of guilt was unequivocal; and if so,
ii. Whether the sentence meted against the Appellant was harsh or excessive in the circumstances.
D. ANALYSIS
8. This being the first appellate Court, this Court is duty bound to carefully examine and analyse afresh the evidence on record and come to its own conclusion on the same but always observing that the trial Court had the advantage of seeing and hearing the witnesses and observing their demeanor and so the first appellate court must give allowance of the same. This was well put in the well-known case of Okeno V Republic [1972] EA 32 where the Court stated as follows:
“The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala V R (1975) EA 57). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” [See also: Kiilu & Another vs Republic [2005] 1KLR 174]
9. Guided by the aforementioned authorities, below is an analysis of the main issues raised in the instant appeal.
a. Whether the Appellant’s plea of guilt was unequivocal
10. As rightly submitted by the Respondent, an appellate Court may only interfere with a guilty plea if the plea taken is ambiguous, imperfect, unfinished or that the trial Court erred in treating it as a guilty plea; or where the accused pleads guilty as a result of misapprehension or mistake; or where the charge disclosed no offence known in law. [See: Alexander Lukoya Maliku vs Republic [2015] eKLR].
11. Section 348 of the Criminal Procedure Code provides:-
“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.”
12. I have looked at the record of proceedings in the trial Court. Both the charge and the detailed particulars of the charge were read over to the Appellant in a language he preferred, Kiswahili, and he stated “ni ukweli”. The plea of guilty was then entered, as per the proceedings of the trial Court, and the facts were then read over to the Appellant. Consequently, the Appellant replied “The facts are correct”. The trial Court then proceeded to convict the Appellant of the offence in the main count on his own plea of guilt. Given these facts, this Court finds that the Appellant’s plea of guilt was unequivocal in every sense. Further, it is the finding of this Court that the charge, the particulars of the charge, and the detailed facts read over to the Appellant did disclose the offence of burglary contrary to Section 304(2) of the Penal Code and stealing contrary to Section 279(b) of the Penal Code. I do not find any basis to interfere with the Appellant’s conviction.
b. Whether the sentence meted against the Appellant was harsh and excessive in the circumstances
13. As a first appellate Court, this Court should only disturb the sentence meted on the Appellant if it is established that the sentence was illegal, or that in sentencing, the trial Court failed to take into account relevant factors, or took into account irrelevant ones or that it applied the wrong legal principles. An appellate Court can also interfere with the sentence if, in its view, the sentence was harsh or manifestly excessive in the circumstances of the case. [See: Bernard Kimani Gacheru V Republic, [2000] eKLR; Macharia V Republic, [2003] KLR 115].
14. Having found that the Appellant was guilty of the offences of burglary and stealing, the learned trial magistrate imposed a sentence of 4 (four) years imprisonment for burglary and 3 (three) years’ imprisonment for the offence of stealing.
15. Under the provisions of Section 279 a person is liable to imprisonment upon conviction, for fourteen (14) years. On the other hand, the felony of housebreaking and burglary under the provision of Section 304 of the Penal Code attracts a liability of imprisonment for seven (7) years. Given the prescribed sentences under the mentioned provisions and considering the circumstances of this case and the Appellant’s mitigation, it is my view that the trial Court correctly exercised its discretion in meting out the sentence against the Appellant. The same was lenient and as such, this Court need not interfere with the same.
E. CONCLUSION
16. For the reasons stated above, I find that this appeal is without merits and is hereby dismissed.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 3rd day of March 2026
M.S. SHARIFF
JUDGE
IN THE PRESENCE OF:
APPELLANT
MR OTIENO FOR RESPONDENT
PETER MACHONI - COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E020 OF 2025
DANIEL WAFULA ………………………………….……………APPELLANT
VERSUS
REPUBLIC………………………………………………........RESPONDENT
(Being an appeal from the original conviction and sentence in the Senior Principal Magistrate Court at Kimilili in Criminal case No. E028 of 2025 dated and delivered on 24th January 2025 –Hon. J.P.Nandi-SPM)
JUDGEMENT
A. BACKGROUND
1. This is an appeal filed by the Appellant herein against his conviction and sentence. The Appellant was charged with the offence of burglary contrary to Section 304(2) of the Penal Code and stealing contrary to Section 279(b) of the Penal Code. In the alternative, he faced the charge of handling stolen goods contrary to Section 322(1) of the Penal Code.
2. The particulars of the main count were that on 21st January 2025, at Matili area in Kimilili Sub-County within Bungoma County, the Appellant broke and entered the dwelling house of one Ian Nabachanja Wekhomba and therein stole 3 sufurias, 2 duvets, 1 blanket, 1 pair of shoes, 6kg power gas cylinder, 4 cups, 1 mattress, cash amounting to Kshs 7,000/= and a home theater, all valued at Kshs 36,100/=.
3. The Appellant pleaded guilty to the offence of burglary and stealing as charged in the main count and was convicted on his own plea of guilt. He was then sentenced to serve four (4) years imprisonment for the offence of burglary and he was sentenced to serve three (3) years imprisonment for the offence of stealing. The trial Court ordered for the two sentences to run concurrently.
B. APPEAL
4. Despite being convicted on his own plea of guilty, the Appellant preferred this appeal stating that he was aggrieved by both the conviction and sentence meted out against him by the trial Court.
5. Based on the foregoing grounds, the Appellant thus prayed for this appeal to be allowed by quashing his conviction and setting aside his sentence, and the case be remitted for retrial.
6. The appeal was canvassed by way of written submissions. Both parties complied with the Court directives.
C. ISSUES FOR DETERMINATION
7. This Court has considered this appeal and the response made. The main issues that arise for this Court to determine are as follows:
i. Whether the Appellant’s plea of guilt was unequivocal; and if so,
ii. Whether the sentence meted against the Appellant was harsh or excessive in the circumstances.
D. ANALYSIS
8. This being the first appellate Court, this Court is duty bound to carefully examine and analyse afresh the evidence on record and come to its own conclusion on the same but always observing that the trial Court had the advantage of seeing and hearing the witnesses and observing their demeanor and so the first appellate court must give allowance of the same. This was well put in the well-known case of Okeno V Republic [1972] EA 32 where the Court stated as follows:
“The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala V R (1975) EA 57). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” [See also: Kiilu & Another vs Republic [2005] 1KLR 174]
9. Guided by the aforementioned authorities, below is an analysis of the main issues raised in the instant appeal.
a. Whether the Appellant’s plea of guilt was unequivocal
10. As rightly submitted by the Respondent, an appellate Court may only interfere with a guilty plea if the plea taken is ambiguous, imperfect, unfinished or that the trial Court erred in treating it as a guilty plea; or where the accused pleads guilty as a result of misapprehension or mistake; or where the charge disclosed no offence known in law. [See: Alexander Lukoya Maliku vs Republic [2015] eKLR].
11. Section 348 of the Criminal Procedure Code provides:-
“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.”
12. I have looked at the record of proceedings in the trial Court. Both the charge and the detailed particulars of the charge were read over to the Appellant in a language he preferred, Kiswahili, and he stated “ni ukweli”. The plea of guilty was then entered, as per the proceedings of the trial Court, and the facts were then read over to the Appellant. Consequently, the Appellant replied “The facts are correct”. The trial Court then proceeded to convict the Appellant of the offence in the main count on his own plea of guilt. Given these facts, this Court finds that the Appellant’s plea of guilt was unequivocal in every sense. Further, it is the finding of this Court that the charge, the particulars of the charge, and the detailed facts read over to the Appellant did disclose the offence of burglary contrary to Section 304(2) of the Penal Code and stealing contrary to Section 279(b) of the Penal Code. I do not find any basis to interfere with the Appellant’s conviction.
b. Whether the sentence meted against the Appellant was harsh and excessive in the circumstances
13. As a first appellate Court, this Court should only disturb the sentence meted on the Appellant if it is established that the sentence was illegal, or that in sentencing, the trial Court failed to take into account relevant factors, or took into account irrelevant ones or that it applied the wrong legal principles. An appellate Court can also interfere with the sentence if, in its view, the sentence was harsh or manifestly excessive in the circumstances of the case. [See: Bernard Kimani Gacheru V Republic, [2000] eKLR; Macharia V Republic, [2003] KLR 115].
14. Having found that the Appellant was guilty of the offences of burglary and stealing, the learned trial magistrate imposed a sentence of 4 (four) years imprisonment for burglary and 3 (three) years’ imprisonment for the offence of stealing.
15. Under the provisions of Section 279 a person is liable to imprisonment upon conviction, for fourteen (14) years. On the other hand, the felony of housebreaking and burglary under the provision of Section 304 of the Penal Code attracts a liability of imprisonment for seven (7) years. Given the prescribed sentences under the mentioned provisions and considering the circumstances of this case and the Appellant’s mitigation, it is my view that the trial Court correctly exercised its discretion in meting out the sentence against the Appellant. The same was lenient and as such, this Court need not interfere with the same.
E. CONCLUSION
16. For the reasons stated above, I find that this appeal is without merits and is hereby dismissed.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 3rd day of March 2026
M.S. SHARIFF
JUDGE
IN THE PRESENCE OF:
APPELLANT
MR OTIENO FOR RESPONDENT
PETER MACHONI - COURT ASSISTANT