The Appellant was charged with the offence of malicious damage to property contrary to Section 339 (1) of the Penal Code. The particulars are that on the 22nd day of January 2024 at Thim Jope Sub-Location in Uriri Sub-County willfully and unlawfully destroyed a pit latrine the property of Hellen Auma Onyango valued at Kshs. 30,000/=
In count 2 the Appellant was charged with the offence of stealing contrary to Section 268 as read with Section 275 of the Penal Code. The particulars to Count 2 are that on the 22nd January 2024 at Thim Jope in Uriri Sub-County within Migori Couny stole, 10 iron sheets valued at Kshs. 12,000/=the property of Hellen Auma Onyango.
In the 3rd count the Appellant was charged with the offence of creating disturbance contrary to Section 95 (1) (b). The Particulars to count 3 are that on 22nd February 2024 at Thim Jope in Uriri Sub-County within Migori County, created a disturbance in a manner likely to cause a breach of the peace.
In Count 4 the Appellant was charged with the offence of resisting arrest contrary to Section 254(b) of the Penal Code. The Particulars are that on 23rd of January 2024 at East Kanyamkago Location in Uriri Sub-County within Migori County the Appellant resisted arrest by PC John Kinuthia and PC Michael Roswe who were acting in the due execution of their duty.
The Appellant pleaded guilty to the offences in the four counts when pea was read to him and he was convicted. He said in his mitigation that the pit latrine he demolished was dangerous and that is why he demolished it. Upon mitigation the Appellant was sentenced to serve 5 years in count 1, 3 years in count 2, 6 months in count 3, and 2 years in count 4 which were to run consecutively as he had past record in Migori SPMC CR C NO 1025 OF 2021 where he was charged with the offence of stealing a motor cycle and as a result members of public set his parents’ home on fire.
The Appellant was aggrieved by the conviction and sentence and he lodged the appeal herein vide Petition of Appeal dated 20th February 2024 and filed on even date on the following grounds:
(a) THAT he pleaded guilty.
(b) THAT he was remorseful.
(c) THAT he was a family man, with a big responsibility on family matters and he begged for forgiveness.
The Appellant prayed that the appeal be allowed, and that the sentence be ordered to run concurrently on humanitarian grounds.
In his supplementary ground of appeal and submissions the Appellant faulted the Trial Court for failing to comply with the provisions of Article 50(2) (b) (g) & (h) of the Constitution. The Appellant in his submissions said that he got confused during plea and ended up pleading guilty as he did not know what was expected of him as he was not informed of his right to an advocate of his choice.
The Appellant also submitted that the sentence meted out was harsh and excessive in the circumstances and since they were committed in a series, they should run concurrently. He relied on the decision in BMN V Republic Criminal Appeal No. 97 of 2013 (2014) eKLR where the court held: -
“As a general principle, the practice is that if an accused person commits a series of offences at the same time in a single act/transaction a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment.”
The Respondent’s submissions are dated 14th of October 2024.
The Respondents urged the Court to dismiss the appeal as the appellant pleaded guilty to all the four counts and was convicted and sentenced.
On the submission that the lower court failed to comply with the provisions of Article 50 (2) (b) (g) and (h), it was submitted that since the Appellant had been previously charged, he must have been aware that he was entitled to legal representation of his choice.
On the submission that the sentence was too harsh, the Respondent said that the same was within the law and as per the discretion of the Trial Court and therefore not harsh and excessive. That the offences were distinct although part of one transaction and required deterrent sentence as it was evident that the Appellant had not been rehabilitated. The Court was urged to uphold the conviction and sentence.
This Court has considered the appeal and finds that it is true that the Appellant was not informed of the provisions of Article 50 (2)(g) & (h) and therefore his plea of guilty was not unequivocal. The Constitution requires that an Accused person is promptly informed of his rights to legal representation before plea is taken and it is misleading for the Respondent to submit that since the Appellant had been charged in Criminal Case No. 1025 of 2021, he was aware of the provision that he had a right to legal representation of his choice or at the state’s expense.
Having found that the Appellant was not accorded a fair trial at the time of his plea and as a result pleaded guilty and was convicted and sentenced to serve 5 years in count 1, 3 years in count 2, 6 months in count 3, and 2 years in count 4 which were to run consecutively, this court finds that the appeal has merit and is allowed. The Appellant to be released forthwith unless lawfully detained.
Right of Appeal 14 days.
Dated, Signed and Delivered at Migori this 24th day of June, 2025
In count 2 the Appellant was charged with the offence of stealing contrary to Section 268 as read with Section 275 of the Penal Code. The particulars to Count 2 are that on the 22nd January 2024 at Thim Jope in Uriri Sub-County within Migori Couny stole, 10 iron sheets valued at Kshs. 12,000/=the property of Hellen Auma Onyango.
In the 3rd count the Appellant was charged with the offence of creating disturbance contrary to Section 95 (1) (b). The Particulars to count 3 are that on 22nd February 2024 at Thim Jope in Uriri Sub-County within Migori County, created a disturbance in a manner likely to cause a breach of the peace.
In Count 4 the Appellant was charged with the offence of resisting arrest contrary to Section 254(b) of the Penal Code. The Particulars are that on 23rd of January 2024 at East Kanyamkago Location in Uriri Sub-County within Migori County the Appellant resisted arrest by PC John Kinuthia and PC Michael Roswe who were acting in the due execution of their duty.
The Appellant pleaded guilty to the offences in the four counts when pea was read to him and he was convicted. He said in his mitigation that the pit latrine he demolished was dangerous and that is why he demolished it. Upon mitigation the Appellant was sentenced to serve 5 years in count 1, 3 years in count 2, 6 months in count 3, and 2 years in count 4 which were to run consecutively as he had past record in Migori SPMC CR C NO 1025 OF 2021 where he was charged with the offence of stealing a motor cycle and as a result members of public set his parents’ home on fire.
The Appellant was aggrieved by the conviction and sentence and he lodged the appeal herein vide Petition of Appeal dated 20th February 2024 and filed on even date on the following grounds:
(a) THAT he pleaded guilty.
(b) THAT he was remorseful.
(c) THAT he was a family man, with a big responsibility on family matters and he begged for forgiveness.
The Appellant prayed that the appeal be allowed, and that the sentence be ordered to run concurrently on humanitarian grounds.
In his supplementary ground of appeal and submissions the Appellant faulted the Trial Court for failing to comply with the provisions of Article 50(2) (b) (g) & (h) of the Constitution. The Appellant in his submissions said that he got confused during plea and ended up pleading guilty as he did not know what was expected of him as he was not informed of his right to an advocate of his choice.
The Appellant also submitted that the sentence meted out was harsh and excessive in the circumstances and since they were committed in a series, they should run concurrently. He relied on the decision in BMN V Republic Criminal Appeal No. 97 of 2013 (2014) eKLR where the court held: -
“As a general principle, the practice is that if an accused person commits a series of offences at the same time in a single act/transaction a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment.”
The Respondent’s submissions are dated 14th of October 2024.
The Respondents urged the Court to dismiss the appeal as the appellant pleaded guilty to all the four counts and was convicted and sentenced.
On the submission that the lower court failed to comply with the provisions of Article 50 (2) (b) (g) and (h), it was submitted that since the Appellant had been previously charged, he must have been aware that he was entitled to legal representation of his choice.
On the submission that the sentence was too harsh, the Respondent said that the same was within the law and as per the discretion of the Trial Court and therefore not harsh and excessive. That the offences were distinct although part of one transaction and required deterrent sentence as it was evident that the Appellant had not been rehabilitated. The Court was urged to uphold the conviction and sentence.
This Court has considered the appeal and finds that it is true that the Appellant was not informed of the provisions of Article 50 (2)(g) & (h) and therefore his plea of guilty was not unequivocal. The Constitution requires that an Accused person is promptly informed of his rights to legal representation before plea is taken and it is misleading for the Respondent to submit that since the Appellant had been charged in Criminal Case No. 1025 of 2021, he was aware of the provision that he had a right to legal representation of his choice or at the state’s expense.
Having found that the Appellant was not accorded a fair trial at the time of his plea and as a result pleaded guilty and was convicted and sentenced to serve 5 years in count 1, 3 years in count 2, 6 months in count 3, and 2 years in count 4 which were to run consecutively, this court finds that the appeal has merit and is allowed. The Appellant to be released forthwith unless lawfully detained.
Right of Appeal 14 days.
Dated, Signed and Delivered at Migori this 24th day of June, 2025