Darren Mbithi Kalunda v Republic [2014] KEHC 4796 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 265 OF 2013

DARREN MBITHI KALUNDA ……….…………………… APPELLANT

VERSUS

REPUBLIC

(Being an appeal from the conviction and sentence of  Hon. R. Rator Resident Magistrate delivered on 24/9/2012 in Makueni Principal Magistrate Criminal Case No.  365 of 2012)

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(Before Hon. B. Thuranira Jaden J)

J U D G M E N T

The Appellant, Darren Mbithi Kalunda was charged in count I with House breaking contrary to section 304 (1) and stealing from a dwelling house contrary to section 279 (b) of the Penal Code.

The particulars of the offence were that on the 14th day of September 2012 at Wote Location, Makueni Districtwithin Makueni County broke and entered into a dwelling house of Rhoda Mueni Mulili with intent to steal therein and did steal therein DVD make Sony, Zuku decorder, all valued at Kshs.10,700/= the property of the said Rhoda Mueni Mulili.

In count II the Appellant was charged with the offence of house breaking contrary to section 304 (1) and stealing in a dwelling house contrary to section 279 (b) of the Penal Code.

The particulars of the offence were that on the 14th day of September 2012 at Wote Location, Makueni District within Makueni County broke and entered into a dwelling house of Joshua Wambua Makanda with intent to steal therein and did steal therein phone Nokia 3310 valued at kshs.2,500/= the property of the said Joshua Wambua Makanda.

The charges were read out to the Appellant and all the essential ingredients explained to him and he pleaded guilty in all the counts.  The interpretation is reflected as English, Kiswahili and Kikamba.  The facts were read out and the Appellant accepted the same as correct.  The trial court followed all procedures of plea taking [See Adan –vs- Republic 1973 EA 445].

The record reflects that there was a court clerk in court. The Appellant participated in the trial and even mitigated.  As held by the Court of Appeal in the case of Said Hassan Nuno v Republic [2010] eKLR- Nyeri Criminal Appeal 322 of 2006:-

“We take judicial notice that one of the core duties of a court clerk is to offer interpretation services to accused or even to the court where it does not understand the language of the accused; or a witness to the case.”

Section 348 of the Criminal Procedure Code provides as follows:-

“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.”

In the 1st count the Appellant was sentenced to seven (7) years imprisonment in the 1st limb and ten (10) years in the 2nd limb.  In the 2nd count the Appellant was sentenced to serve seven (7) years imprisonment in the 1st limb and ten (10) years imprisonment in the 2nd limb.  Sentence is being served concurrently.

Although the sentence in each count is within the law, the same is harsh and excessive.  Consequently, I am persuaded to reduce the same to the period already served.

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B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 28th   day of May 2014.

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B. THURANIRA JADEN

JUDGE