1.The Appellant Kennedy Kiminza Kilaka was charged with breaking into a building Contrary to section 306 and Stealing Contrary to section 279 (b) of the Penal Code.
2.It was alleged that on 2/7/2022 at Kasikeu Shopping Centre in Mukaa Sub County within Makueni County he jointly with another not before court broke and entered the bar of Raphael Mulwa Kakunza and stole items valued as Kshs. 117,770.
3.In the alternative he was charged with handling stolen property Contrary to section 322(2) of the same code.
4.That on 10/7/2022 at Kithumani Village Nzaui Sub county Makueni County he, other than in the course of stealing he dishonestly retained one senator Keg Pump S/No EABL 173 448 knowing/having reason to believe that it was stolen property.
5.He pleaded guilty to the main count. The facts were read to him, and the record shows the following, that;
6.The accused pleaded guilty to the facts. He was convicted on his own plea of guilt. The Prosecution had no previous record, hence he was a first offender.
7.On the accused’s mitigation, the record says - “nil”. That is to say he said he had nothing to say. The court then states - The accused is not remorseful and sentenced him to 4 years’ imprisonment.
8.The accused has filed this appeal against the sentence only. In his submissions he concedes that he was not involved in the break in but helped the offenders in transporting the stolen goods.
9.He submitted that at the time he was trying to start a family; that he is remorseful - and pleaded guilty in fear that he would be forced to plead guilty by the police. He seeks a non-custodial sentence.
10.The state submits that the appellant does not deserve any leniency from this court: that he pleaded guilty and ought to have been sentenced to 7 years’ imprisonment but only got 4 years as provided for under section 306 (a) of the Penal Code.
11.The only issue here is whether this court can disturb his sentence.
12.It is now settled that a conviction and sentence can be challenged despite the provision of section 348 of the Criminal Procedure Code if the plea was unequivocal.
13.The appellant did plead guilty to the main count which according to the charge sheet is brought under section 306(a) and 279(b) of the Penal Code. Section 279 of the Penal Code provides;
14.Evidently these are two distinct criminal charges with their own prescribed sentences,
15.Clearly the 1st count is fatally defective as the charge is duplex to the extent of prejudicing the appellant. Upon that finding, I hold that the conviction and sentence on this main count cannot stand.
16.The conviction on the main count is quashed and the sentence set aside for duplicity.
17.However, the appellant concedes to having been found in possession of the stolen property which was recovered. The facts as read to and explained to the appellant, andadmitted by the appellant prove the alternative charge brought under section 322 (2) of the same code. It states
18.It is for this charge that I find proved by the facts as read to and admitted by the appellant. Having quashed the conviction and sentence on the main count, it is for the alternative charge that the accused is hereby convicted.
19.This one carries a maximum sentence of 14 years’ imprisonment.
20.I take into consideration that the accused person pleaded guilty, and he is a 1st offender.
21.In order to arrive at an appropriate sentence I order that a pre-sentence report be made available to court within 14 days hereof.
22.The order be served upon Probation and Aftercare Services to avail the report.