INTRODUCTION
The Appellant was charged with the offence of burglary contrary to section 304(2) and stealing contrary to section 279(2) at the Ndhiwa Principal Magistrate court in Ndhiwa PMCR NO. E999 of 2024. The particulars of the offence were that on 22 nd July, 2024 at Upper Kayambo Location, Ndhiwa Sub-county of Homabay County within the Republic of Kenya, he broke and entered into a dwelling house of SILAS OBWOGI GOR and stole two (2) Mattresses, seven(7) sufurias, three (3) trays 1(1) thermos flask, one (1) duvet, one(1) blanket, one(1) bedsheet, two(2) rolls of barbed wires, one(1) inverter and one(1) solar controller all valued at Ksh. 50,000 being the properties of SILAS OBWOGI GOR.
The Appellant took plea before Hon. B. W. MURANGASIA on 26 th August,, 2024 wherein he pleaded guilty of the offense. He was convicted on his own plea of guilty and sentenced 5 years in prison.
Being dissatisfied with the decision of the trial court to sentence him to serve 5 years imprisonment the applicant appealed to this court vide a petition of appeal dated 7 th August, 2024. The appeal was based on the grounds that;
He was convicted on his own plea of guilty.
It was his first time to be arrested and arraigned in court hence he did not understand the charges clearly.
The learned Magistrate erred in law for not informing him of the consequences of the charge.
The he was harassed and tortured and compelled to admit by the investigating officers.
He was never supplied with the charge sheet and witness statement
The sentence meted upon him was very harsh.
Based on the above grounds the Appellant the quashing of his conviction, setting aside of his sentence and order for retrial.
This court on 16 th October, 2023 directed the parties the Appeal dispose of the Appeal through written submissions. All the Parties have filed their submissions for my consideration.
The matter came up before Lady justice Olga Sewe on 20.2.25 and she disqualified
herself from hearing the matter for personal reasons and transferred the matter to this court for hearing and determination of this appeal .
The Appellant in his submissions reiterated the grounds of appeal. He insisted that he did not understand the consequences of pleading to guilty given that it was his first time in court and that the court did not warn him of such consequences. He decried prior to his arraignment in court he was harassed psychologically tortured and instructed by the police to come to court and plead guilty. He further stated that the police warned of dire consequences if he went to court and pleaded not guilty to the charges and thus being afraid of what would face him thereafter he decided to plead guilty. He urged this court to grant him another chance to have his case proceed to full hearing. He went on to aver that he was never supplied with witness statement and the charge and was ambushed with charges he did not understand. The Appellant equally submitted that the 5 year sentence for an alleged offense of stealing goods valued at Ksh. 50,000/ was very harsh. He accused the trial court of failing to consider an option of fine.
On his part the learned prosecution counsel submitted that the appellant was convicted on his own plea of guilt. Also that the plea was unequivocal and in accordance with prescribed provisions. He submitted that the substance of the charge(s) was read to the Appellant in Dholuo, a language which he stated he understood well, who being asked whether it was true he replied “true”. Further the learned counsel submitted that facts of the case were read to the appellant which fact he stated that he understood the same so well and stated the same were correct confirming that he stole the items listed in the particulars of the charge from the house of the complainant. The learned counsel equally submitted that the appellant was given an opportunity to mitigate and his mitigation was that he had never stolen before; that he had succumbed to peer pressure and prayed for leniency, a fine or be given an opportunity to compensate the complainant. The learned counsel contended that the trial court did consider his mitigation prior to sentencing him.
Regarding the appellants claim that he was harassed, tortured and compelled to admit by the investigating officer, the learned counsel submitted that the same was a mere afterthought as he did not raise the same during plea. The learned counsel argued that the appellant pleased guilty before the trial court .
The learned counsel for the prosecution also submitted that since the conviction of the Appellant arose from his own plea of guilt, Section 348 of the Criminal Procedure code bars appeals from subordinate courts where an accused was convicted upon a plea of guilty except on the extent and legality of the sentence. To support his argument, the learned counsel relied on the case of Olel vs Republic (1998) KLR 444. He contended that it was clear from the evidence on record that prima facie the plea of guilt was unequivocal and that the applicant agreed that the facts constituting the offense were correct.
The learned counsel in the end concluded that the conviction and the sentence were proper and urged this court to dismiss the Appeal.
DETERMINATION
Having considered the petition of Appeal especially the grounds outlined therein herein and which I have summarized hereinabove, the proceedings the lower court and submissions of all the parties which I have equally outlined hereinabove, I find that the issues for determination are;
Whether the plea was unequivocal
Whether the 5 year sentence was harsh
Whether the plea was unequivocal
The appellant main prayer is that he be given another chance to undergo a full trial of his case. He decries that even though he pleaded guilty of the offenses the court did not warn him of the consequences of doing so. Also that prior his arraignment he was harassed, tortured by the investigating officer and compelled to admit the offenses against his will. Further that that he was never supplied with witness statements and the charge and was ambushed to respond to the charges he did not understand.
It is trite law that an appellate court may only interfere with a plea of guilt if the plea taken is ambiguous, 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 Laurent Mpinga v Republic (1883) TLR 166 cited with approval in the case of J.M. v Republic (2014) e KLR).
Further the correct procedure of recording a plea of guilty was stated in the case of Adan v Republic , (1973) EA 446 where Spry V.P. laid down the procedure at page 446 as follows:
“When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused’s reply must of course be recorded.”
In the instant case, the record shows that both the charge and the detailed particulars of the charge were read over to the appellant, in dholuo Language which he opted for and he responded “it is true”. Thereafter detailed facts of the offence were read to him and he responded to by stating “true”. The plea of guilty was then entered. The facts were then read over to him. To the facts, the Appellant’s response was: “The facts are true and correct”. The trial court then proceeded to convict the Appellant of the offences on his own plea of guilt. In mitigation the appellant blamed bad peer influence for his actions and even offered to compensate complainant .
Generally felonies attract custodial sentence and are thus serious enough to warrant a warning to the accused appearing in person before plea taking . In the case of Simon Gitau Kinene v Republic (2016) e KLR Justice J Ngugi held:
Finally, courts have always held that extra caution needs to be taken in the case of undefended defendants who plead guilty. I have previously held that where an Accused Person is unrepresented, the duty of the Court to ensure the plea of guilty is unequivocal is heightened. In Paulo Malimi Mbusi v R Kiambu Crim. App. No. 8 of 2016 (unreported) this is what I said and I find it relevant here:
In those cases [where there is an unrepresented Accused charged with a serious offence], care should always be taken to see that the Accused understands the elements of the offence, especially if the evidence suggests that he has a defence.….To put it plainly, then, one may add that where an unrepresented Accused Person pleads guilty to a serious charge which is likely to attract custodial sentence, the obligation of the court to ensure that the Accused Person understands the consequences of such a plea is heightened. Here, the Court took no extra effort to ensure this. In these circumstances, given the seriousness of the charge the Court was about to convict and sentence the Accused Person for, it behooved the Court to warn the Accused Person of the consequences of a guilty plea.
The record before shows that the Appellant was unrepresented. However the trial court was careful enough to inform him in a language that he understood prior to taking plea that he was entitled legal representation of his own choice and was encouraged to exercise it. He was also informed that he is entitled to apply to the legal aid board for any assistance. To me this was sufficient evidence that appellant was warned that the charge(s) he was about to plead to was serious and carried serious consequences and thus he needed to seek the legal representation of his own choice or seek the assistance of the legal aid board should he desire. He therefore cannot claim that court did not make him understand the consequences of the charge he faced.
Equally, the appellant has claimed that he pleaded guilty because he was harassed, tortured and compelled to admit committing the offense by the investigating officer. At no point did the appellant tell the trial court that he had been harassed by the investigating officer to admit the charges.
I find that the appellant understood the charges, pleaded guilty voluntarily and thus the plea was unequivocal and thus the conviction was safe .
Whether the 5 year sentence was harsh
The Appellant in his grounds of appeal claims that the sentence meted on him was very harsh on the circumstances of the case and prayed that the same be set aside.
The offence Burglary contrary to section 304(2) of the Penal Code carries a sentence of seven (7) years imprisonment while that of Stealing under section 279(b) of the Penal Code carries a sentence of fourteen (14) years imprisonment. The Appellant was sentenced to serve 5 (five) years imprisonment for the offense upon the court considering the Appellant’s Mitigation. The Court noted that from the volume of items recovered the accused had conspirators and that as mark of good faith he failed to inform the court the said conspirator who assisted him in the burglary. The court noted too accused in his mitigation claimed he was influenced by someone to commit the offense without revealing the identity of the said person. The court equally noted that the appellant hails from Migori County, Kakrao Sub County whereas the burglary was committed in Ndhiwa, Homabay and was arrested in Sori and thus there was an obvious indication that the appellant had meticulously planned the burglary as well as his escape to Sori where he was arrested.
It is trite law that sentencing is at the discretion of the trial court and the court can only interefere if it was manifestly excessive as was held in the case of Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 where the Court of Appeal stated thus;
“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”
A Similar position was held by the court of appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR where it was stated that:
“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist .”
Before meting out a sentence the court has a duty to consider the nature of the offence,its circumstances , age of accused, previous criminal records if any , value of the subject matter , impact of the offence on complainant and the community , prevalence of the offence within the jurisdiction of the court , whether accused has pleaded guilty and saved Judicial time, the need to correct appellant and mitigation among other factors . The trial court considered the mitigation the fact that the appellant admitted that he is a gang member from Migori county and the offence was committed in Homabay county and the prevalence of the offence within the jurisdiction of the court. Though the appellant is a young man, 1 st offender and he pleaded guilty and saved the time of the court , he was a gang member and thus there is need to correct him in an institutional where he can also be taught basic life skills . The court thus exercised it's jurisdiction judiciously in arriving at the sentence of 5 years which is below that statutory period of 10 years sentence provided for under Section 304(2) of the penal code . I see no reason to disturb the sentence and I uphold the same .
For the reasons stated above, I find that this appeal is without merit and is dismissed. Both the conviction and sentence are upheld.
T.A ODERA
JUDGE
24.7.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 24 TH DAY OF JULY 2025 IN THE PRESENCE OF APPELLANT, MR KOIMA FOR PROSECUTION MR KIPCHIRCHIR I COURT ASSISTANT
The Appellant was charged with the offence of burglary contrary to section 304(2) and stealing contrary to section 279(2) at the Ndhiwa Principal Magistrate court in Ndhiwa PMCR NO. E999 of 2024. The particulars of the offence were that on 22 nd July, 2024 at Upper Kayambo Location, Ndhiwa Sub-county of Homabay County within the Republic of Kenya, he broke and entered into a dwelling house of SILAS OBWOGI GOR and stole two (2) Mattresses, seven(7) sufurias, three (3) trays 1(1) thermos flask, one (1) duvet, one(1) blanket, one(1) bedsheet, two(2) rolls of barbed wires, one(1) inverter and one(1) solar controller all valued at Ksh. 50,000 being the properties of SILAS OBWOGI GOR.
The Appellant took plea before Hon. B. W. MURANGASIA on 26 th August,, 2024 wherein he pleaded guilty of the offense. He was convicted on his own plea of guilty and sentenced 5 years in prison.
Being dissatisfied with the decision of the trial court to sentence him to serve 5 years imprisonment the applicant appealed to this court vide a petition of appeal dated 7 th August, 2024. The appeal was based on the grounds that;
He was convicted on his own plea of guilty.
It was his first time to be arrested and arraigned in court hence he did not understand the charges clearly.
The learned Magistrate erred in law for not informing him of the consequences of the charge.
The he was harassed and tortured and compelled to admit by the investigating officers.
He was never supplied with the charge sheet and witness statement
The sentence meted upon him was very harsh.
Based on the above grounds the Appellant the quashing of his conviction, setting aside of his sentence and order for retrial.
This court on 16 th October, 2023 directed the parties the Appeal dispose of the Appeal through written submissions. All the Parties have filed their submissions for my consideration.
The matter came up before Lady justice Olga Sewe on 20.2.25 and she disqualified
herself from hearing the matter for personal reasons and transferred the matter to this court for hearing and determination of this appeal .
The Appellant in his submissions reiterated the grounds of appeal. He insisted that he did not understand the consequences of pleading to guilty given that it was his first time in court and that the court did not warn him of such consequences. He decried prior to his arraignment in court he was harassed psychologically tortured and instructed by the police to come to court and plead guilty. He further stated that the police warned of dire consequences if he went to court and pleaded not guilty to the charges and thus being afraid of what would face him thereafter he decided to plead guilty. He urged this court to grant him another chance to have his case proceed to full hearing. He went on to aver that he was never supplied with witness statement and the charge and was ambushed with charges he did not understand. The Appellant equally submitted that the 5 year sentence for an alleged offense of stealing goods valued at Ksh. 50,000/ was very harsh. He accused the trial court of failing to consider an option of fine.
On his part the learned prosecution counsel submitted that the appellant was convicted on his own plea of guilt. Also that the plea was unequivocal and in accordance with prescribed provisions. He submitted that the substance of the charge(s) was read to the Appellant in Dholuo, a language which he stated he understood well, who being asked whether it was true he replied “true”. Further the learned counsel submitted that facts of the case were read to the appellant which fact he stated that he understood the same so well and stated the same were correct confirming that he stole the items listed in the particulars of the charge from the house of the complainant. The learned counsel equally submitted that the appellant was given an opportunity to mitigate and his mitigation was that he had never stolen before; that he had succumbed to peer pressure and prayed for leniency, a fine or be given an opportunity to compensate the complainant. The learned counsel contended that the trial court did consider his mitigation prior to sentencing him.
Regarding the appellants claim that he was harassed, tortured and compelled to admit by the investigating officer, the learned counsel submitted that the same was a mere afterthought as he did not raise the same during plea. The learned counsel argued that the appellant pleased guilty before the trial court .
The learned counsel for the prosecution also submitted that since the conviction of the Appellant arose from his own plea of guilt, Section 348 of the Criminal Procedure code bars appeals from subordinate courts where an accused was convicted upon a plea of guilty except on the extent and legality of the sentence. To support his argument, the learned counsel relied on the case of Olel vs Republic (1998) KLR 444. He contended that it was clear from the evidence on record that prima facie the plea of guilt was unequivocal and that the applicant agreed that the facts constituting the offense were correct.
The learned counsel in the end concluded that the conviction and the sentence were proper and urged this court to dismiss the Appeal.
DETERMINATION
Having considered the petition of Appeal especially the grounds outlined therein herein and which I have summarized hereinabove, the proceedings the lower court and submissions of all the parties which I have equally outlined hereinabove, I find that the issues for determination are;
Whether the plea was unequivocal
Whether the 5 year sentence was harsh
Whether the plea was unequivocal
The appellant main prayer is that he be given another chance to undergo a full trial of his case. He decries that even though he pleaded guilty of the offenses the court did not warn him of the consequences of doing so. Also that prior his arraignment he was harassed, tortured by the investigating officer and compelled to admit the offenses against his will. Further that that he was never supplied with witness statements and the charge and was ambushed to respond to the charges he did not understand.
It is trite law that an appellate court may only interfere with a plea of guilt if the plea taken is ambiguous, 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 Laurent Mpinga v Republic (1883) TLR 166 cited with approval in the case of J.M. v Republic (2014) e KLR).
Further the correct procedure of recording a plea of guilty was stated in the case of Adan v Republic , (1973) EA 446 where Spry V.P. laid down the procedure at page 446 as follows:
“When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused’s reply must of course be recorded.”
In the instant case, the record shows that both the charge and the detailed particulars of the charge were read over to the appellant, in dholuo Language which he opted for and he responded “it is true”. Thereafter detailed facts of the offence were read to him and he responded to by stating “true”. The plea of guilty was then entered. The facts were then read over to him. To the facts, the Appellant’s response was: “The facts are true and correct”. The trial court then proceeded to convict the Appellant of the offences on his own plea of guilt. In mitigation the appellant blamed bad peer influence for his actions and even offered to compensate complainant .
Generally felonies attract custodial sentence and are thus serious enough to warrant a warning to the accused appearing in person before plea taking . In the case of Simon Gitau Kinene v Republic (2016) e KLR Justice J Ngugi held:
Finally, courts have always held that extra caution needs to be taken in the case of undefended defendants who plead guilty. I have previously held that where an Accused Person is unrepresented, the duty of the Court to ensure the plea of guilty is unequivocal is heightened. In Paulo Malimi Mbusi v R Kiambu Crim. App. No. 8 of 2016 (unreported) this is what I said and I find it relevant here:
In those cases [where there is an unrepresented Accused charged with a serious offence], care should always be taken to see that the Accused understands the elements of the offence, especially if the evidence suggests that he has a defence.….To put it plainly, then, one may add that where an unrepresented Accused Person pleads guilty to a serious charge which is likely to attract custodial sentence, the obligation of the court to ensure that the Accused Person understands the consequences of such a plea is heightened. Here, the Court took no extra effort to ensure this. In these circumstances, given the seriousness of the charge the Court was about to convict and sentence the Accused Person for, it behooved the Court to warn the Accused Person of the consequences of a guilty plea.
The record before shows that the Appellant was unrepresented. However the trial court was careful enough to inform him in a language that he understood prior to taking plea that he was entitled legal representation of his own choice and was encouraged to exercise it. He was also informed that he is entitled to apply to the legal aid board for any assistance. To me this was sufficient evidence that appellant was warned that the charge(s) he was about to plead to was serious and carried serious consequences and thus he needed to seek the legal representation of his own choice or seek the assistance of the legal aid board should he desire. He therefore cannot claim that court did not make him understand the consequences of the charge he faced.
Equally, the appellant has claimed that he pleaded guilty because he was harassed, tortured and compelled to admit committing the offense by the investigating officer. At no point did the appellant tell the trial court that he had been harassed by the investigating officer to admit the charges.
I find that the appellant understood the charges, pleaded guilty voluntarily and thus the plea was unequivocal and thus the conviction was safe .
Whether the 5 year sentence was harsh
The Appellant in his grounds of appeal claims that the sentence meted on him was very harsh on the circumstances of the case and prayed that the same be set aside.
The offence Burglary contrary to section 304(2) of the Penal Code carries a sentence of seven (7) years imprisonment while that of Stealing under section 279(b) of the Penal Code carries a sentence of fourteen (14) years imprisonment. The Appellant was sentenced to serve 5 (five) years imprisonment for the offense upon the court considering the Appellant’s Mitigation. The Court noted that from the volume of items recovered the accused had conspirators and that as mark of good faith he failed to inform the court the said conspirator who assisted him in the burglary. The court noted too accused in his mitigation claimed he was influenced by someone to commit the offense without revealing the identity of the said person. The court equally noted that the appellant hails from Migori County, Kakrao Sub County whereas the burglary was committed in Ndhiwa, Homabay and was arrested in Sori and thus there was an obvious indication that the appellant had meticulously planned the burglary as well as his escape to Sori where he was arrested.
It is trite law that sentencing is at the discretion of the trial court and the court can only interefere if it was manifestly excessive as was held in the case of Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 where the Court of Appeal stated thus;
“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”
A Similar position was held by the court of appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR where it was stated that:
“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist .”
Before meting out a sentence the court has a duty to consider the nature of the offence,its circumstances , age of accused, previous criminal records if any , value of the subject matter , impact of the offence on complainant and the community , prevalence of the offence within the jurisdiction of the court , whether accused has pleaded guilty and saved Judicial time, the need to correct appellant and mitigation among other factors . The trial court considered the mitigation the fact that the appellant admitted that he is a gang member from Migori county and the offence was committed in Homabay county and the prevalence of the offence within the jurisdiction of the court. Though the appellant is a young man, 1 st offender and he pleaded guilty and saved the time of the court , he was a gang member and thus there is need to correct him in an institutional where he can also be taught basic life skills . The court thus exercised it's jurisdiction judiciously in arriving at the sentence of 5 years which is below that statutory period of 10 years sentence provided for under Section 304(2) of the penal code . I see no reason to disturb the sentence and I uphold the same .
For the reasons stated above, I find that this appeal is without merit and is dismissed. Both the conviction and sentence are upheld.
T.A ODERA
JUDGE
24.7.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 24 TH DAY OF JULY 2025 IN THE PRESENCE OF APPELLANT, MR KOIMA FOR PROSECUTION MR KIPCHIRCHIR I COURT ASSISTANT