Egelan Kapelo v Republic [2015] KECA 46 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

(CORAM: MARAGA, MUSINGA & GATEMBU, JJA.)

CRIMINAL APPEAL NO. 136 OF 2011

BETWEEN

EGELAN KAPELO………………………………………..APPELLANT

AND

REPUBLIC……………………………………………………RESPONDENT

(Being an appeal from the judgment of the High Court of Kenya at Kitale, (Koome, J.) dated 9th June, 2011,

in

H.C.C.A No. 1 of 2011)

******************

JUDGMENT OF THE COURT

1. The appellant pleaded   guilty to a charge of manslaughter contrary to section 202 as read with section 205 of the penal Code.It was  alleged  that on  2nd January  2011 at Kambi  Miti Manyatta, Lowerang'ak Location  within Turkana County,  the  appellant unlawfully caused the  death of Peter Losuru.     He was convicted and sentenced to 15 years' imprisonment.

2.  Despite the plea of guilty, the appellant,  who was unrepresented, preferred an appeal to this Court against both conviction and sentence.

3.  When the appeal came up for hearing, the appellant merely pleaded with this Court to reduce the sentence.   On the other hand, Mr. Mulati, Principal Prosecution Counsel submitted that under section 348 of the Criminal Procedure Code the appeal is untenable and urged us to dismiss it.

4. Section 348 of the Criminal Procedure Code that was cited to us by Mr. Mulatl is not applicable as it relates to appeals from subordinate courts to the High Court.  This is an appeal from a judgment delivered by the High Court.   Section 379 (3) of the Criminal Procedure Code states:

"(3) No appeal shall be allowed in the case of an accused   person who has pleaded guilty and has been convicted on that plea by the High Court, except as to the extent or legality of his sentence."

5.  The appellant’s appeal against conviction does not lie.  The appeal against the extent of the sentence that was passed by the trial court is tenable.   However, considering the nature of the offence that was committed by the appellant and the sentence that was handed down to him, we are not inclined to interfere with the sentence.

6.  Consequently, this appeal is dismissed.

DATED AT ELDORET THIS 25TH DAY OF JUNE 2015

D.K.MARAGA

……………………………..

JUDGE OF APPEAL

D. K. MUSINGA

……………………………..

JUDGE OF APPEAL

S. GATEMBU KAIRU,  FCIArb

…………………………………..

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR