The Appellant Jack Otieno Otieno was charged in Migori CMC CR. C. NO. E397 of 2023 with the offence of breaking into a building and committing a felony contrary to Section 306 (a) of the Penal Code he was also charged with alternative Count of handling stolen goods contrary to Section 322 (1) and (2) of the Penal Code.
The Appellant pleaded guilty to the offence and he was convicted and sentenced to serve 6 years imprisonment on 13.12.2023.
The Appellant was aggrieved by his convictions and sentence and he lodged petition of Appeal herein which was filed on 28.12.2023 on the grounds
- That the plea as taken was not unequivocal
- That the learned magistrate disregarded all open discrepancies in the particulars of the offence as captured by the prosecution
- That the sentence was overly harsh inspite of him being a 1st offender
The Appellant prayed that his appeal be allowed, conviction quashed and sentence set aside.
The appeal was heard by way of written submissions. The Appellant complained that his right to fair trial was violated as he was not informed of the charge with sufficient detail to answer to it.
He submitted that the sentence was harsh.
The Respondents counsel opposed the appeal in the submission dated 14.10.2024 and said that the Appellant pleaded guilty to the charge and when facts were read to him, he accepted them as true. It was submitted that the charge and facts were, read to the Appellant in a language he elected to use and the same was clear and he pleaded guilty. It was submitted that the Appellant had ample time to change his plea to not guilty as facts were read to him the following day.
Further that the Appellant in his mitigation admitted having committed the offence and gave reasons why he committed the offence.
It was submitted that the Appellant was informed of his right under Article 50(2) (g) and (h) of the Constitution and he indicated he would proceed on his own.
On sentence the Respondent submitted that the Appellant was not a 1st offender as he had been handed a 5 years suspended sentence in Criminal Case No. E199 of 2023 and that he was a habitual offender. It was submitted that 6 years was within the law and can’t be termed as harsh and excessive as the law provides for 7 years.
The Respondents counsel urged the court to dismiss the appeal.
ANALYSIS AND DETERMINATION
The Appellant pleaded guilty to the charge of breaking into a building and stealing and thus this court will only consider whether the plea was unequivocal.
From the record the Appellant elected to use the Kiswahili language. He was also informed of his right to legal representation and he elected to proceed without one. When the charge was read to the Appellant he responded: - “Ni Ukweli’”. Facts were deferred to be read the following day as the exhibits were not in court.
On 7.12.2023 facts were read to the Appellant and he again responded as follows: “Ni ukweli”
The Accused was then said to have previous records in Criminal Case No. E199 of 2023 where his 5 years sentence was suspended.
The Appellant was allowed to mitigate and on 13.12.2023 he was sentenced to serve 6 years imprisonment.
This court finds that the plea as taken was unequivocal. However, the sentence in considerations of the value of the subject matter was harsh and excessive. The same is set aside and substituted with 2 years jail term. The Appellant having been arraigned in court on 6.12.2023 his sentence will run from the said date and the reminder of the sentence as from 20.1.2025 to be served on probation supervision. The reminder of the sentence of the term to be calculated by prison authorities and communicated to Probation and After Care Services for processing.
Delivered dated and signed at Migori this 19th day of December, 2024.