The Appellant was convicted and sentenced to serve 3 years imprisonment in each of the 2 counts to run consecutively for the offence of cheating contrary to Section 315 of the Penal Code and giving false information to a person employed in a public service contrary t Section 129 of the Penal Code on his own plea of guilty.
The particulars of the offence in count 1 were that the Appellant on diverse dates between November 2021 and April 2022 at Rongo Township in Rongo Sub-County within Migori County by fraudulent trick induced Tom De’Gor to pay a sum of Kshs. 700,000/= for the sale of land.
The particulars to the 2nd count were that on 3rd June 2022 at Kamagambo Police Station in Rongo Sub-County within Migori County in the Republic of Kenya vide OB No. 15/03/06/2022 at 0800hrs informed the Report Office Personnel P.C. Akal and P.C. Kibenet being officers employed in the public service as police officers that you lost your title deed Kamagambo/Kabuoro/6474 and identity card No. 6039315, information you knew to be false and secured an abstract for the same.
The Appellant was aggrieved by the conviction and sentence and he preferred the appeal herein vide Memorandum of Appeal dated 11th October 2023on the following grounds:
(1). THAT the Learned Trial Magistrate erred in law and fact when he failed to consider the age and health condition of the Appellant before sentencing.
(2). THAT the Learned Trial Magistrate erred in law and fact when he failed to warn the accused of the consequences of pleading guilty given the magnitude of the offence.
(3). THAT the Learned Trial Magistrate failed to give the Appellant a fair trial based on the constitutional duty of the court to enforce that right.
REASONS WHEREFORE the Appellant prayed that the appeal be allowed and judgement and sentence of the trial court be set aside and a retrial be ordered.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions with additional grounds of appeal are dated 23rd May 2023.
The Respondent filed submissions dated 22nd January 2025 opposing the appeal.
This court has considered the grounds of appeal, the submissions and re-evaluated the record of the trial court as well as the sentence passed against the Appellant and confirmed that the Trial Court informed the Appellant of the right to legal representation before the charge was read over to him in a language he confirmed he understood and he pleaded not guilty to the charge. On 6th October 2023 when the 1st Prosecution witness took the stand and had taken oath the Appellant requested the court to read the charge afresh to him and he pleaded guilty after the charge was read and particulars explained to him. It was not the 1st time the Appellant was appearing in court and it was at his instance that the charge was read over to him again and he pleaded guilty. This court finds no fault with the proceedings as conducted by the trial court and the plea was unequivocal.
On whether the Trial Magistrate did not consider the age and health of the Appellant when sentencing him the same ground was raised in the Appellant’s application for bond pending appeal and it was found that the claim of poor health was not supported by recent medical Report sufficient to find that the Prison Medical facilities cannot manage while he is serving the sentence. The Appellant is aged 59 years old and there is nothing to show that he is too old to serve a legal sentence for an offence he committed while fully aware of the consequences. The Appellant did not say anything about his health during mitigation and it cannot be said that the Trial Magistrate failed to consider his health while passing sentence.
On whether the sentence passed was harsh and excessive the offences for which the Appellant was charged under Sections 315 and 129 of the Penal Code provide that when one is found guilty they would be liable to imprisonment for 3 years. This is the maximum penalty provided for both offences which are misdemeanors. The Trial Magistrate did not call for a pre-sentence report when the Appellant opted to plead guilty in the first instance without subjecting the court to a protracted trial process and did not also explain why he opted for the maximum penalty and compounding it with the rider of the same running consecutively.
Based on the re-evaluation of the evidence on record in the trial Court, analysis of the grounds of appeal as against the submissions of the rival parties this court finds that the sentence was harsh and excessive. In the circumstances this court finds that the term already served from 6th October 2023 to date is sufficient punishment and this court hereby orders that the Appellant be released forthwith unless lawfully detained..
Right of Appeal 14 days.
Dated, signed and delivered this 30thth day of May, 2025
The particulars of the offence in count 1 were that the Appellant on diverse dates between November 2021 and April 2022 at Rongo Township in Rongo Sub-County within Migori County by fraudulent trick induced Tom De’Gor to pay a sum of Kshs. 700,000/= for the sale of land.
The particulars to the 2nd count were that on 3rd June 2022 at Kamagambo Police Station in Rongo Sub-County within Migori County in the Republic of Kenya vide OB No. 15/03/06/2022 at 0800hrs informed the Report Office Personnel P.C. Akal and P.C. Kibenet being officers employed in the public service as police officers that you lost your title deed Kamagambo/Kabuoro/6474 and identity card No. 6039315, information you knew to be false and secured an abstract for the same.
The Appellant was aggrieved by the conviction and sentence and he preferred the appeal herein vide Memorandum of Appeal dated 11th October 2023on the following grounds:
(1). THAT the Learned Trial Magistrate erred in law and fact when he failed to consider the age and health condition of the Appellant before sentencing.
(2). THAT the Learned Trial Magistrate erred in law and fact when he failed to warn the accused of the consequences of pleading guilty given the magnitude of the offence.
(3). THAT the Learned Trial Magistrate failed to give the Appellant a fair trial based on the constitutional duty of the court to enforce that right.
REASONS WHEREFORE the Appellant prayed that the appeal be allowed and judgement and sentence of the trial court be set aside and a retrial be ordered.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions with additional grounds of appeal are dated 23rd May 2023.
The Respondent filed submissions dated 22nd January 2025 opposing the appeal.
This court has considered the grounds of appeal, the submissions and re-evaluated the record of the trial court as well as the sentence passed against the Appellant and confirmed that the Trial Court informed the Appellant of the right to legal representation before the charge was read over to him in a language he confirmed he understood and he pleaded not guilty to the charge. On 6th October 2023 when the 1st Prosecution witness took the stand and had taken oath the Appellant requested the court to read the charge afresh to him and he pleaded guilty after the charge was read and particulars explained to him. It was not the 1st time the Appellant was appearing in court and it was at his instance that the charge was read over to him again and he pleaded guilty. This court finds no fault with the proceedings as conducted by the trial court and the plea was unequivocal.
On whether the Trial Magistrate did not consider the age and health of the Appellant when sentencing him the same ground was raised in the Appellant’s application for bond pending appeal and it was found that the claim of poor health was not supported by recent medical Report sufficient to find that the Prison Medical facilities cannot manage while he is serving the sentence. The Appellant is aged 59 years old and there is nothing to show that he is too old to serve a legal sentence for an offence he committed while fully aware of the consequences. The Appellant did not say anything about his health during mitigation and it cannot be said that the Trial Magistrate failed to consider his health while passing sentence.
On whether the sentence passed was harsh and excessive the offences for which the Appellant was charged under Sections 315 and 129 of the Penal Code provide that when one is found guilty they would be liable to imprisonment for 3 years. This is the maximum penalty provided for both offences which are misdemeanors. The Trial Magistrate did not call for a pre-sentence report when the Appellant opted to plead guilty in the first instance without subjecting the court to a protracted trial process and did not also explain why he opted for the maximum penalty and compounding it with the rider of the same running consecutively.
Based on the re-evaluation of the evidence on record in the trial Court, analysis of the grounds of appeal as against the submissions of the rival parties this court finds that the sentence was harsh and excessive. In the circumstances this court finds that the term already served from 6th October 2023 to date is sufficient punishment and this court hereby orders that the Appellant be released forthwith unless lawfully detained..
Right of Appeal 14 days.
Dated, signed and delivered this 30thth day of May, 2025