Makokha v Republic [2022] KEHC 12876 (KLR)

Makokha v Republic (Criminal Appeal E131 of 2021) [2022] KEHC 12876 (KLR) (12 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12876 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E131 of 2021

HI Ong'udi, J

September 12, 2022

Between

Kennedy Wekesa Makokha

Appellant

and

Republic

Respondent

(Arising from the conviction and sentence in Webuye Senior Principal Magistrate’s Criminal case No. 312 of 2021 by M. Munyekenye SPM on 23rd December 2021)

Judgment

1. Kennedy Wekesa Makokha the appellant first appeared in court on October 21, 2021 when the charge of burglary and stealing contrary to section 304(1) and stealing contrary to section 279(b) of the PenalCode was read to him. He denied the charge and a plea of not guilty was entered. When he next appeared on November 24, 2021 he informed the Court that he wished to change plea. The charge was read to him in Kiswahili language and he admitted the charge. The facts were to be read to him the next day but he did not appear in court. They were then read to him on December 1, 2021 and he confirmed they were correct. He was then convicted on his own plea of guilty.

2. He was given an opportunity to mitigate which he did. A pre-sentencing report was called for and the same was availed onDecember 23, 2021. The court considered it confirming that the appellant was a repeat offender. He was sentenced to seven (7) years imprisonment for burglary and four (4) years imprisonment for stealing. Sentences are to run concurrently.

3. He filed several grounds of appeal vide his petition of appeal dated December 29, 2021 challenging both the conviction and sentence. However in his written submissions received by the court on July 14, 2022 he withdrew those grounds. The gist of his submissions is reduction of the sentence. He submits that he reformed during his period of incarceration. He requests for an opportunity to rejoin his family.

4. The respondent’s submissions are datedAugust 4, 2022 and were filed by learned counsel Hilda Omondi. She submits that the plea by the appellant who pleaded guilty was unequivocal. She relied on section 207 of theCriminal Procedure Code; and the cases of:-i.Adan v Republic(1973) EA 445ii.Obedi Kilonzo Kivevo v Republic[2015] eKLR.

5. She further submitted that owing to section 348 of the Criminal Procedure Code and the appellant having pleaded guilty he could only appeal against sentence. She contends that the appellant being, a re-offender the sentence meted out was not excessive. She urged the court to dismiss the appeal.

6. The record clearly sets out what transpired when the appellant appeared before the court. It is him who asked to be allowed to change his plea. The procedure of plea taking as set out in section 207 of the Criminal Procedure Code was strictly followed. The proceedings were clearly translated to him. I therefore find that the plea of guilty was unequivocal and it stands.

7. The next issue is the sentence. Before the Court passed sentence the learned trial Magistrate called for a pre-sentence report which was availed. It revealed that prior to the commission of this offence the appellant had just left prison upon serving a two (2) year sentence vide criminal case No. 93/2019. He does not deny that.

8. The value of the stolen items after the break in is Kshs.31,000/=. None of the stolen items was recovered. In as much as the appellant is remorseful he did not return any of the items to the owner. It is confirmed that he is married with three (3) children. It is not anywhere indicated in the pre-sentencing report that his wife is deceased as he told the Court on 1st December 2021 in his mitigation.

9. The court is also concerned that the burglary and stealing occurred soon after the appellant’s release from prison after serving a two (2) year jail term. This means he did not learn anything from the two (2) years in jail and that is why the learned trial Magistrate gave him a longer sentence.

10. I have considered all these factors including the fact that the appellant has a wife and young children. At the same time I do consider that the complainant and the villagers are still bitter with the appellant’s conduct. He has to remain behind bars for sometime.

11. I therefore set aside the sentence of seven (7) years imprisonment for burglary and substitute it with one of four (4) years. He will therefore serve four (4) years imprisonment for burglary and four (4) years imprisonment for stealing. Sentences to run concurrently from the date of conviction. The appeal succeeds to that extent only.Orders accordingly.

DELIVERED VIRTUALLY SIGNED AND DATED THIS 12TH DAY OF SEPTEMBER, 2022 IN OPEN COURT AT NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT