Analysis and Determination
14.The issues for determination are whether the plea was unequivocal, whether the appellants can challenge the conviction and sentence in light of s. 348 of the Criminal Procedure Code.
15.From the record, it is evident that the appellants pleaded guilty to the charges and they have admitted as much in their submissions. The record also shows that the charges and all their elements were read to them in the language which they understood (Kiswahili). They responded in Kiswahili by stating ‘ni ukweli’ after which the facts were read and they responded by stating ‘maelezo ni ya ukweli’.
16.Section 348 of the CPC provides that:
17.However, there are numerous authorities that the wording of s. 348 is not a bar to bring an appeal even where an accused person has pleaded guilty because not all pleas of guilt are unequivocal. For instance, where an accused person pleads to a defective charge?
18.As regards the extent or legality of the sentence; In terms of pronouncement of the number of years that the appellants were going to prison that was the discretion of the learned trial magistrate.
19.The accused persons are charged with Burglary c/s 304(2) and stealing c/s 279(b) of the Penal Code.
20.Section 304 provides Housebreaking and burglary
21.Section 279(b) states -
22.These are two distinct charges with their own penalties. The prosecution conveniently left out the penalty under s. 279 which states the offender is liable to imprisonment for fourteen years.The question is which of the two would the learned trial magistrate use: 10 years under s. 304(2) or 14 years under s. 279(b)? The prosecution cannot literally have their cake and eat it?
23.There is no question about the fact that the charge sheet was itself fatally defective. The combination of the two charges each with its own penalty was prejudicial to the appellants who did not have the assistance of legal counsel and could not have noted that by themselves. The court cannot uphold an illegality. The fact that these two were combined like that ultimately rendered the charge fatally defective, and the guilty pleas not unequivocal.
24.S. 304 (1)(b) as read with s. (2) was sufficient to cover both the alleged burglary and theft of the complainant’s property. The prosecution had the choice to use s. 304 or s. 279(b) of the Penal code.
25.At this juncture I find it necessary to reproduce our Sentencing Guidelines (2016) on the sentencing hearing as provided for at paragraph 23. In a video clip shared on our WhatsApp groups the Judge in the Nigerian Trafficking Case ( citation was not available) the judge set out the factors upon which the sentence was based on setting out aggravating and mitigating factors. Our own sentencing guidelines provide us with the step by step guidelines on how to do this but still stuck in our pre-2010 Constitution practices, sentencing still remains a challenge, one liners. The guidelines make the following provisions:23.1The court should schedule a hearing in which it receives submissions that would impact on the sentence. Whilst the pertinent information is typically contained in the reports, the hearing provides the court with an opportunity to examine the information and seek clarity on all issues.23.2The sentencing hearing also provides the offender with an opportunity to cross-examine on any adverse information that would be prejudicial to him/her. This is in keeping with the spirit of the Constitution which guarantees the offender the right to adduce and challenge evidence.
26.Determination of the Sentence23.3After the sentencing hearing, the court should:1.Make a decision as to whether a custodial or a non-custodial sentence should be imposed in line with paragraph 7.15 of these guidelines.2.If the most appropriate sentence is a custodial one, proceed to determine the length of the sentence.Aggravating and Mitigating Circumstances23.4To determine the most suitable sentence, the court shall take into account the aggravating and mitigating circumstances.23.5In all cases, convicted persons should be expressly provided with an opportunity to present submissions in mitigation.23.6The list of aggravating and mitigating circumstances below is not exhaustive.Aggravating Circumstances23. 7Aggravating circumstances warrant a stiffer penalty than would be ordinarily imposed in their absence. They include:1.Use of a weapon to frighten or injure a victim; the more dangerous the weapon, the higher the culpability.2.Multiple victims.3.Grave impact on national security.4.Serious physical or psychological effect on the victim.5.Continued assault or repeated assaults on the same victim.6.Commission of the offence in a gang or group.7.Targeting of vulnerable groups such as children, elderly persons and persons with disability.8.Previous conviction(s), particularly where a pattern of repeat offending is disclosed.9.Intricate planning of an offence.10.An intention to commit a more serious offence than was actually committed.11.High level of profit from the offence.12.An attempt to conceal or dispose of evidence.13.Flagrant use of violence or damage to person or property in the carrying out of an offence.14.Abuse of a position of trust and authority.15.Use of grossly inhuman and degrading means in the commission of an offence.16.Targeting those working in the public sector or providing a service to the public.17.Commission of offences motivated by ethnic, racial and gender bias.Mitigating Circumstances23.8Mitigating circumstances warrant a more lenient penalty than would be ordinarily imposed in their absence. They include:1.A great degree of provocation.2.Commitment to repairing the harm caused by the offender’s conduct as evidenced by actions such as compensation, reconciliation and restitution prior to conviction.3.Negligible harm or damage caused.4.Mental illness or impaired functioning of the mind.5.Age, where it affects the responsibility of the individual offender.6.Playing of a minor role in the offence. 7. Being a first offender.8.Remorsefulness.9.Commission of a crime in response to gender-based violence.10.Pleading guilty at the earliest opportunity and cooperation with the prosecution and the police.23. 9In view of aggravating and mitigating circumstances, the determination of the term of the custodial sentence shall be as follows:1.Starting point in determining the term of the custodial sentence: The first step is for the court to establish the custodial sentence set out in the statute for that particular offence. To enable the court to factor in mitigating and aggravating circumstances/factors, the starting point shall be fifty percent of the maximum custodial sentence provided by statute for that particular offence. Having a standard starting point is geared towards actualizing the uniformity/impartiality/consistency and accountability/transparency principles set out in paragraphs 3.2 and 3.3 of these guidelines. A starting point of fifty percent provides a scale for the determination of a higher or lower sentence in light of mitigating or aggravating circumstances.2.Presence of mitigating circumstances: The effect of mitigating circumstances/factors is to lessen the term of the custodial sentence. The court shall consider the mitigating circumstances/factors and deduct some time off the fifty percent of the custodial sentence provided by statute for that particular offence. Where the statute has set out a minimum term, the deduction of time in custody cannot go below the minimum sentence.3.Presence of aggravating circumstances: The effect of aggravating circumstances/factors is to increase the term of the custodial sentence. The court shall consider the aggravating circumstances/factors and add a length of time to the fifty percent of the sentence provided by statute for that particular offence. The court cannot impose a sentence that goes beyond the custodial term provided by law.4.Presence of both aggravating and mitigating circumstances: Where both exist, the court should weigh the aggravating and mitigating circumstances and where mitigating circumstances outweigh the aggravating ones, then the court should proceed as if there is a single mitigating circumstance. Where aggravating circumstances outweigh the mitigating circumstances, then the court should proceed as if there is a single aggravating circumstance.23.1010 Since life imprisonment has not been defined by the law in Kenya, guideline 23.9 above which presumes a sentence specifying the length of time would not be applicable. However, in such cases, the court should endeavor to impose a sentence in keeping with the spirit of these guidelines as set out in part I.
27.In this particular case the only reason given for the 5-year sentence was the fact that the Probation Officer’s Report was negative. The learned trial magistrate stated:
28The reason above is the sole reason for the five-year sentence as per the record. There is nothing on record to show that the appellants were made aware of the very adverse rapport against them and had an opportunity to respond. But of great importance as to the rights of the appellant’s to a fair hearing there is no consideration of the mitigation factors; that the appellants were first offenders; that they had pleaded guilty, that they had indeed offered restitution. Even where the 5 year imprisonment sentence for first offenders would have been justified there was reason to give reasons for rejecting what was in favour of the appellants.
29.The Guidelines came into force vide Gazette Notice No 2970 headed the Constitution of Kenya the Judicial Service Act (No 1 of 2011) Sentencing Guidelines The gazette notice states :
30.It goes without overemphasis that these Guidelines are considered the to go to good practice towards ensuring sentencing justice for all categories of offenders, victims and the community and the criminal justice system itself.
31.Both the learned trial magistrate, and the Probation officer were obligated to consider all the requisite factors and to place them on record.
32.As it is the appellants side of the matter was not considered and that is where this court comes in.
33.In the circumstances even though the appellants pleaded guilty the plea to count 1 was clearly not unequivocal in light of the defective charge.
34.The 1st accused however did admit to being found in possession of the complainant’s panga, which is what led to the arrest in the first place. He is the one who mentioned the 2nd accused.
35.With respect to the alternative charge I find that the facts as given by the prosecution and admitted by the 1st accused person establish the alternative charge of handling stolen property c/s 322(2) of the penal code.
36.The 1st appellant’s conviction with respect to the 1st count is quashed. However, it is substituted with a conviction on the alternative charge of handling stolen c/s 322 (2) property which was one panga. The penalty as provided (2) A person who handles stolen goods is guilty of a felony and is liable to imprisonment with hard labour for a term not exceeding fourteen years.
37.Taking into consideration the mitigating factors, and that there were no aggravating circumstances, I would find the five years’ imprisonment as harsh and substitute for a term of three years’ imprisonment from the date of arrest.
38.The rest of the appeal succeeds. The following orders issuei.The conviction on the main count is quashed and the related sentence is set aside.ii.The 1st appellant is guilty of the alternative charge. He is convicted of the same and sentenced to three years’ imprisonment from the date of 1st remand, September 20, 2021.iii.The 2nd appellant be set at liberty unless otherwise legally held.iv.Orders accordingly