Abdullahi v Republic (Criminal Appeal E006 of 2024) [2025] KEHC 3896 (KLR) (26 March 2025) (Judgment)
Neutral citation:
[2025] KEHC 3896 (KLR)
Republic of Kenya
Criminal Appeal E006 of 2024
AK Ndung'u, J
March 26, 2025
Between
Rashid Abdullahi
Appellant
and
Republic
Respondent
(From original Conviction and Sentence in Maralal SPM Criminal Case No E383 of 2023– J.L Tamar, SPM)
Judgment
1.The Appellant, Rashid Abdullahi, was charged with burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code. He was convicted on his own plea of guilty and sentenced to ten (10) years imprisonment. The particulars were that on 24/12/2023 at around 2230hrs at Shabaha area of Kirisia Samburu central sub-county within Samburu County, entered the shop of Irene Lolkitekwi with intent to steal therein and did steal from therein assorted food stuffs valued at Kshs.12,730, the property of Irene Lolkitekwi.
2.He filed a petition of appeal where he raised the following grounds;i.The learned magistrate erred by failing to accord him the chance to defend himself even after indicating that he will give sworn evidence.ii.The learned magistrate misapprehended the law on admissibility and production of documentary evidence.iii.The learned magistrate erred by shifting the burden of proof to the Appellant.iv.The learned magistrate erred by not giving him a chance to read the charge sheet in a language that he understood.v.That going by the records, he was arrested, sentenced almost immediately without being warned on the nature of the offence.vi.That he prays that in event the appeal is rejected, that he be sent for a retrial in a different court.
3.He filed written submissions and submitted that he is seeking retrial since his case was done in a haste for he was charged on 28/12/2023 and was sentenced on the same day. The trial court erred passing the judgment based on his previous conviction and failed to consider the complainant victimised him due to the previous sentence. That he took plea under duress because of the torture that was subjected to him particularly threats and beatings. He urged the court to order retrial to enable justice to prevail. That the judicial officer’s hands were untied by the supreme court decision on sentencing and can now exercise their discretional powers having considered the submissions.
4.The Respondent’s counsel filed written submissions and argued that the Appellant entered a plea of guilty. Facts were read out to him in accordance with section 207 of the Criminal Procedure Code. Further, the trial court followed the procedure in convicting and sentencing him as required by law. And in accordance with section 348 of the Criminal Procedure Code, an appeal against conviction cannot be allowed. That he understood the charges he was facing hence he suffered no prejudice. Reliance was placed on the case of Abdallah Mohammed vs Republic (2018) eKLR where the court held that based on the seriousness of the offence, it behoved upon the court to warn the accused person of the consequences of a guilty plea. That the conviction and the sentence was proper and he urged the court to uphold the same.
5.I have considered the rival submissions by the parties herein. The Appellant is challenging the conviction and the sentence on account that he was not given a chance to read the charge sheet in a language that he understood, that the trial was conducted in a haste as he was arrested and sentenced immediately without being warned on the nature of the offence, the trial court sentenced him based on the previous record and that he took plea under duress because he was subjected to torture and that the trial court failed to apply its discretion while sentencing him.
6.The procedure for taking plea is provided under section 207 of the Criminal Procedure Code which states as follows;(1)The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement.(2)If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary:Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded.…
7.The law and practice related to the taking and recording of pleas of guilt was stated in the following iconic paragraph in Adan v Republic(1973) EA 445 at 446-
8.The following was recorded during plea taking;
9.The record reveals that the charges were read to the accused person in a language that he understood and he responded by stating that ‘Ni ukweli’. The language used is indicated as Kiswahili. The facts were read and he stated that the facts were true and that he broke into and stole. Further, in his mitigation, he gave the reasons why he broke into the shop and stole the items and he further stated that he sold the items to get some money. This shows that he clearly understood the charges that he was facing and cannot therefore say that he did not understand the charges. The trial court also followed the procedure of plea taking as provided under section 207 of the Criminal Procedure Code.
10.He claimed that the trial was conducted in a haste and was not even warned on the nature of the offence. I see nothing out of the ordinary in the speed at which the trial was conducted. In a guilty plea, the proceedings are summary ones and the trial magistrate cannot be faulted for doing what he was mandated to do by law.
11.As to sentence, the Appellant was sentenced to 10 years imprisonment as provided under section 304(2). It is also noteworthy the trial court did not sentence him on the second limb of the offence of stealing. The trial court considered that he was a repeat offender and that he had been released three months before he was arrested for the current offence. The trial court thus noted that he had not learnt from the previous punishment. Furthermore, when he was given a chance to mitigate, he only said that he was sorry and stated that he stole because his items had been stolen too and that he sold the stolen items to get some money. He was therefore not remorseful at all.
12.Sentencing is at the discretion of the trial court. The It is therefore my considered view that the sentence was proper in the circumstances of the case.
13.The principles guiding interference with sentencing by the appellate Court were properly, in my view, set out in S vs. Malgas 2001 (1) SACR 469 (SCA) at para 12 where it was held that:
14.I find no grounds upon which to interfere with the sentence herein.
15.With the result, that the appeal herein has no merit and is dismissed in its entirety.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 26TH DAY OF MARCH 2025A.K. NDUNG’UJUDGE