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Court of AppealPartially AllowedCriminal Appeal 178 of 2008· [2009] KECA 407 (KLR)

HUSSEIN HASSAN ALI v REPUBLIC [2009] KECA 407 (KLR)

Court of Appeal of Kenya

30 January 2009

P. K. Tunoi PWP. N. Waki DAD. K. S. Aganyanya

1,341 words in judgment

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The bottom line

Kenya's Court of Appeal cut a nine-year prison term by ordering two sentences to run at the same time, confirming guilty pleas can't easily be undone.

What this practically means

Executive summary

The appellant was charged in the Resident Magistrate's Court at Lamu with possession of papers intended for making currency notes and possession of ammunition without a firearms certificate. He pleaded guilty to both counts, admitted the facts, mitigated, and was sentenced to two years' imprisonment on count I and seven years on count II, with no direction on whether the sentences were to run concurrently or consecutively. His first appeal to the High Court at Malindi (Ombija J) was summarily rejected under section 352(2) of the Criminal Procedure Code. On this second appeal, confined to points of law under section 361(1), the appellant in substance sought leniency, conceding that his plea was properly recorded. The Court of Appeal, comprising Tunoi, Waki and Aganyanya JJA in a single judgment of the court, held that the plea of guilty was unequivocal: applying Kato v Republic and the Adan v Republic guidelines, the facts were narrated and admitted and the appellant mitigated. The Court also held that ignorance of the law affords no defence under section 7 of the Penal Code, and that the summary rejection of the first appeal was proper, the appeal there having been only against sentence. The Court found, however, that the absence of a direction under section 14(1) of the Criminal Procedure Code meant the sentences would in effect run consecutively, an outcome inappropriate for convictions on two counts under the same charge; it accordingly directed that the sentences run concurrently. To that limited extent the appeal succeeded; it was otherwise dismissed as devoid of merit, with no costs order made.

Key legal issues

Sufficiency of a plea of guilty recorded by the words 'it is true'

Holding

Although the words 'it is true' are a poor foundation for a conviction on anything but the simplest of charges, in this case the plea was unequivocal because the facts were narrated, admitted, and the appellant mitigated before sentence.

Reasoning

The court applied Kato v Republic, which cautions that the words 'it is true' may not amount to a plea of guilty and should be explored in all but the simplest charges, and Adan v Republic, which prescribes that after a plea the court should explain the facts and ask whether the accused admits them. Here the facts were narrated, the appellant answered 'the facts are correct', the magistrate recorded an unequivocal plea, and the appellant was given a chance to mitigate.

p. 3

Summary rejection of a first appeal under section 352(2) of the Criminal Procedure Code

Holding

An appeal limited to the severity of sentence and based on alleged ignorance in pleading guilty was properly dealt with by summary rejection; ignorance of the law affords no defence under section 7 of the Penal Code.

Reasoning

The memorandum of appeal did not disclose what the appellant was ignorant about; proceedings were in English or Kiswahili with an interpreter and no complaint was made about interpretation. The appeal was only against sentence, and the Judge was not inclined to interfere, so the summary rejection under section 352(2) was proper, following John Mwangi v Republic.

p. 2

Concurrent versus consecutive sentences where no direction is given

Holding

Since the trial magistrate gave no direction on concurrency, the sentences would run consecutively in effect (9 years); the Court directed that they run concurrently, being the only interference with sentence.

Reasoning

Section 14(1) of the Criminal Procedure Code provides that punishments of imprisonment commence one after the other unless the court directs concurrency. The appellant was convicted on two counts under the same charge, and the Court considered it appropriate that the sentences run concurrently, directing so and otherwise declining to interfere.

p. 3

Legal principles established

On a second appeal, only points of law can be considered.
Where an accused is convicted at one trial of two or more distinct offences, the court should ordinarily direct that sentences of imprisonment run concurrently unless it directs otherwise; absent such a direction, sentences run consecutively.
A plea of guilty recorded in accordance with the Adan v Republic guidelines, followed by admission of the facts and an opportunity to mitigate, is unequivocal and supports conviction.

Court orders

1.The sentences imposed on counts I and II are to run concurrently
2.The appeal is otherwise dismissed

On appeal from: High Court of Kenya at Malindi; H.C.CR.C. No. 34 of 2007
Jurisdiction invoked: Second appeal under section 361(1) of the Criminal Procedure Code, limited to points of law

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "HUSSEIN HASSAN ALI v REPUBLIC [2009] KECA 407 (KLR)", Case Analysis (2009). Criminal Appeal 178 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/407/eng@2009-01-30

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