Darren Mbithi Kalunda v Republic [2014] KEHC 4808 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 260 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.  373 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 with five counts as follows:-

Count I:- Stealing contrary to section 275 of the Penal Code.

The particulars of the offence were that on the  31st day of August 2012 at Full Gospel Church, Wote Location in Makueni District of the Makueni County stole one DVD make L.G., one remote control make LG all valued at Kshs. 4,500/= the property of Ann Wamuyu Nyaga.

Count II:- Stealing contrary to section 275 of the Penal Code.

The particulars of the offence were that on the 31st day of August 2012 at Full Gospel Church Wote, Unoa Sub-location, Wote Location in Makueni District of the Makueni County stole one mobile phone make Samsungvalued at Kshs.10,700/=, cash 5,700 the property of Pauline Nduku Kitivo.

Count III:- Stealing contrary to section 275 of the Penal Code.

The particulars of the offence were that on the 31st day of August 2012 at Full Gospel Church Wote, Unoa Sub-location in Makueni District of the Makueni County, stole one mobile phone make Nokia E 71 valued at Kshs.3,500/= the property of Solomon Musyoki.

Count IV:- Stealing contrary to section 275 of the Penal Code.

The particulars of the offence were that on the 31st day of August 2012 at Full Gospel Church Wote, Unoa Sub-location, Wote Location in Makueni District of the Makueni County, stole one mobile phone make Inova and cash Kshs.150/= all valued at Kshs.2,150 the property of Alex Muinde Saina.

Count V:- Stealing contrary to section 275 of the Penal Code.

The particulars of the offence were that on the 31st day of August 2012 at Full Gospel Church Wote, Unoa Sub-location, Wote Location in Makueni District of the Makueni County, stole a mobile phone make Itel valued at Kshs.6,000/= the property of Justus Wambua Mutune.

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.”

The Appellant was sentenced as follows:-

Count I:- Five (5)  years imprisonment.

Count II:- Five (5) years imprisonment.

Count III:- Five (5) years imprisonment.

Count IV:- Five (5) years imprisonment.

Count V: Five (5) years imprisonment.

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 28thday of May 2014.

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B. THURANIRA JADEN

JUDGE