Macdonald Makasi & Another v Republic [1994] KECA 31 (KLR)

Court of Appeal of Kenya

27 September 1994

RKR. O. Kwach MMM. G. Muli

P. K. Tunoi

296 words in judgment

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The bottom line

In Kenya, if you plead guilty in a criminal case, you generally lose the right to appeal your conviction, though you can still challenge the sentence.

What this practically means

Executive summary

Two brothers, Macdonald Makasi and Alfred Mulos, were convicted on their own pleas of guilty of robbery contrary to section 296(1) of the Penal Code and sentenced by the trial Magistrate to 7 years imprisonment, 10 strokes of the cane and 5 years police supervision. Their first appeal against sentence to the High Court at Eldoret (Aganyanya J) was summarily rejected under section 352(2) of the Criminal Procedure Code, and they appealed further to the Court of Appeal at Nakuru. The Court of Appeal held that, having admitted the offence and the prosecution facts before conviction was entered, the appellants had no right of appeal against conviction, and that even the Superior Court would have had no power to entertain complaints against conviction; those complaints were therefore disregarded. On sentence, the court noted that section 296(1) permits a maximum of 14 years imprisonment with corporal punishment not exceeding 28 strokes, and that the sentences actually imposed were quite lenient; the claim that they were harsh and excessive was baseless. The court concluded that the summary rejection by the Superior Court was proper, upheld it, and dismissed the appeal. This is a single judgment of the full three-judge bench (Kwach, Muli and Tunoi JJA) with no separate or dissenting opinions. The judgment binds subordinate courts on the proposition that a conviction entered on a plea of guilty is not appealable.

Key legal issues

Right of appeal against conviction following a plea of guilty

Holding

No right of appeal against conviction exists where the accused admitted the offence and the facts before conviction; the Court of Appeal cannot consider complaints against conviction in such circumstances.

Reasoning

The appellants pleaded guilty to robbery under section 296(1) of the Penal Code and admitted the prosecution facts before conviction was entered. A plea of guilty extinguishes the right to challenge conviction on appeal, and even the Superior Court on first appeal would have had no power to entertain complaints on conviction. Those complaints were therefore disregarded and rejected as a matter of law rather than on their merits.

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Adequacy of sentence and summary rejection under section 352(2) CPC

Holding

Sentences of 7 years imprisonment, 10 strokes of the cane and 5 years police supervision for robbery under section 296(1) were lenient relative to the 14-year maximum with up to 28 strokes, so summary rejection of the sentence appeal was proper.

Reasoning

Section 296(1) of the Penal Code prescribes a maximum of 14 years imprisonment plus corporal punishment not exceeding 28 strokes. The trial Magistrate's sentences fell well below those maxima, making the appellants' claim of harshness baseless. It followed logically that the High Court's summary rejection under section 352(2) of the Criminal Procedure Code was proper and had to be upheld by the Court of Appeal.

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Legal principles established

An accused who is convicted on his own plea of guilty, having admitted the offence and the facts, has no right of appeal against conviction; appellate courts have no power to entertain complaints against such a conviction.
A summary rejection of an appeal against sentence under section 352(2) of the Criminal Procedure Code is proper where the sentence imposed is within, and indeed below, the statutory maximum.

Court orders

1.The complaints against conviction rejected as the appellants had no right of appeal against conviction after pleading guilty
2.The summary rejection of the appeal by the Superior Court upheld
3.The appeal dismissed

On appeal from: High Court of Kenya at Eldoret; H.C.CR.A. No. 215 of 1992
Jurisdiction invoked: Second appeal to the Court of Appeal under the Criminal Procedure Code (section 352(2) summary rejection of first appeal against sentence in issue)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Macdonald Makasi & Another v Republic [1994] KECA 31 (KLR)", Case Analysis (1994). Criminal Appeal 66 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/31/eng@1994-09-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.