Wambua v Republic [2022] KEHC 13035 (KLR)

Wambua v Republic (Criminal Appeal E081 of 2021) [2022] KEHC 13035 (KLR) (20 September 2022) (Judgment)

Neutral citation: [2022] KEHC 13035 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E081 of 2021

GMA Dulu, J

September 20, 2022

Between

Emmanuel Nyamasio Wambua

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence of Hon. C.A Mayamba in Kilungu Principal Magistrate’s Court Case No.E643 of 2021 pronounced on 30th August 2021)

Judgment

1. The appellant was charged in the magistrate’s court with two counts. Count I was for threatening to kill contrary to section 223(1) of the Penal Code.

2. The particulars of offence under count I were that on 17th August 2021 at around 17:30 hours at Yougoni Village Musalala Sub-Location within Makueni County without lawful excuse threatened to kill Candita Nguve.

3. Under count II, he was charged with malicious damage to property contrary to section 339(1) of the Penal Code, the particulars of which being that on the same date and at the same place willingly cut down 85 banana trees, 2 avacado trees, 5 mango trees, the property of Candita Nguve valued at Kshs.200,000/=.

4. He was recorded as having pleaded guilty to both charges, was convicted and sentenced to serve 2 years imprisonment on each of the two counts, sentences to run concurrently, thus a total sentence of 2 years imprisonment.

5. He has now come to this court on appeal challenging both conviction and sentence. He has claimed that the plea of guilty was not unequivocal, and that the sentence is excessive.

6. I have perused the proceedings. The charges were read to him in Kiswahili language, which he does not dispute knowing. His response to each of the charges was that it was true.

7. After the plea, the prosecutor gave a summary of the facts and again the appellant admitted the truth of the facts, and was convicted.

8. In my view, the requirements for taking a plea of guilty as stated in the case of Adan –vs- Republic (1973) E.A were complied with, thus the appellant cannot say that section 50(2) (m) of the Constitution of Kenya 2010, and section 207 of the Criminal Procedure Code were not complied with.

9. Also, the facts as enumerated by the prosecutor supported the two charges for which the appellant was convicted, and in my view, the conviction of the appellant for the two offences on a plea of guilty was proper and justified.

10. I thus find that the plea of guilty and conviction of the appellant on a plea of guilty was proper, and will uphold the conviction.

11. With regard to sentence, the maximum sentence for threatening to kill is 7 years imprisonment, and the maximum sentence for malicious damage to property is 5 years imprisonment. The learned trial magistrate imposed 2 years prison sentences on each count to run concurrently, thus a total of 2 years imprisonment.

12. Though the appellant has asked for a non-custodial sentence on appeal, in my view, such non-custodial sentence is not appropriate in the circumstances of this case, as there were no mitigating circumstances disclosed to the trial court nor are there relevant mitigating factors disclosed to this court, that would justify putting him on non-custodial sentence.

13. In my view, the sentence imposed by the trial court in the circumstances of the case, was neither harsh nor excessive. I will thus also uphold the sentence imposed.

14. Consequently, I find no merits in the appeal. I dismiss the appeal and uphold both the convictions and sentences of the trial court.

DELIVERED, SIGNED & DATED THIS 20TH DAY OF SEPTEMBER 2022, IN OPEN COURT AT MAKUENI...............................GEORGE DULUJUDGE