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JudgmentScaver Mwanyika VS The Republic4 min read

Scaver Mwanyika VS The Republic

High Court at Voi High Court · · George. Dulu


(From the conviction and sentence in Criminal Case No. E461 of 2022 delivered on 16th February 2023 by Hon. D. Wangeci (PM) at Wundanyi Law Courts)

  1. The appellant was convicted on his own plea to two counts. 
  2. Count I was for burglary and stealing contrary to Section 304(1) as read with section 304(2) of the Penal Code, the particulars of which being that on 8th December 2022 at around 0200hours at Werugha Location Wundanyi Sub County within Taita Taveta County broke into a Safaricom mast site with intent to commit a felony and did steal from therein an internet connecting gadget namely Radwin of S/No. 7E0220G000003396 white in colour worth Kshs. 76,822/= the property of Safaricom Kenya Limited Company.
  3. Count II of which he was convicted on his own plea was for tampering with telecommunication plant contrary to Section 32(c) of the Kenya Information and Communication Act (Cap. 411A) Laws of Kenya, the particulars of offence being that on 18th December 2022 at around 0200hours at Werugha Location in Wundanyi Sub County within Taita Taveta County intentionally and unlawfully vandalized and removed an internet connecting gadget namely Radwin 200 for fixed point to point internet connecting equipment S/No. 7E0220G000003396 white in colour valued at Kshs. 76,822/= the property of Safaricom Kenya Ltd.
  4. On conviction, he was sentenced to three (3) years imprisonment on count I, and ten (10) years imprisonment in count II, sentences to run concurrently which is a total of ten (10) years imprisonment.
  5. Dissatisfied, the appellant has come to this court on appeal against both conviction and sentence, and relied on the following amended grounds of appeal:-
  6. That the guilty plea by the appellant was not unequivocal as stipulated by the Court of Appeal in Adan =Versus= Republic (1973) EA 445.
  7. That whether the mandatory minimum sentence provided under Section 32 of the Kenya Information and Communication Act meets the dictates of the Constitution. 
  8. That whether the Magistrate had legitimate power of discretion to consider his mitigation.
  9. That whether the trial court was alive to the provisions of Section 4(1) and (2) of the Probation of Offender  Act Cap.64 when sentencing.
  10. That this court be pleased to reduce the sentence imposed or place him under probation for the remainder of his prison term.
  11. The appeal was canvassed through written submissions.  In this regard, I have perused and considered the submissions filed by the appellant, as well as the submissions filed by the Director of Public Prosecutions. 
  12. In his submissions on the plea of guilty not being unequivocal, the appellant has pointed out that it was recorded in the proceedings before taking plea that it was not certain if he was fit to take plea in his condition as he was a known case of mental illness.
  13. Indeed, on 23rd December 2022 after the appellant admitted the charges, the learned Prosecuting Counsel Ms. Ondeyo stated as follows:-

“The accused according to the father was subjected to mob justice.  He sustained injury to the head and jaw.  He received treatment.  I do not know if he is fit to take plea in his condition.  He is a known case of mental illness.”

  1. From the record, the trial court stood over the plea taking and ordered the appellant to be taken to Port Reitz Hospital for treatment and mental assessment.
  2. On the 17th January 2023 the mental report was received and he was certified fit to plead.  Thus in my view, the mental state of the appellant could not be taken to vitiate the plea of guilty which was taken after the Psychiatrist certified him fit to plead.
  3. Having also perused the entire record, I find no error committed by the trial Magistrate in taking the plea of guilty on the two counts, wherein the appellant first pleaded guilty to count I and not guilty to count II.  After conviction and sentence on count I, he also pleaded guilty and was convicted and sentenced on count II.
  4. I thus find that the plea of guilty to each of the two counts was unequivocal, and complied with the requirements stated in the case of Adan =Versus= Republic (1972) EA 445.
  5. With regard to sentence, I note that the appellant has issues with the ten (10) years imprisonment for count II, which was a statutory minimum sentence.
  6. In my view, even though this was a minimum statutory sentence situation where the trial court could not consider a lesser sentence, the offence and damage to communication equipment for the public was a serious matter and needed to be dealt with through such a deserving sentence.  However, as the appellant was in custody from 18th December 2022 and in view of the provisions of Section 333(2) of the Criminal Procedure Code (Cap.75), I will order that the concurrent sentence runs from 18th December 2022 when the appellant was arrested.
  7. I thus dismiss the appeal on conviction with regard to sentence, I order that the concurrent sentence totalling ten (10) years will run from 18th December 2022 when the appellant was arrested.

Dated, signed and delivered this ………… day of June, 2024 at Voi in open court.

In the presence of: -

Alfred/Trizah – Court Assistants

    Scaver Mwanyika VS The Republic Scaver Mwanyika VS The Republic