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Court of AppealPartially AllowedCriminal Appeal (Mombasa)· [1984] KECA 63 (KLR)

King Katana & another v Republic [1984] KECA 63 (KLR)

Court of Appeal of Kenya
18 July 1984
AKA. A. KnellerZCZ. R. ChesoniJNJ. O. Nyarangi
772 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that an accused's vague or missing reply cannot count as a guilty plea, quashing the convictions and ordering a retrial.

What this practically means

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Executive summary

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The two appellants were originally jointly charged with murder but, on amendment of the information on 5 December 1983, were charged with manslaughter contrary to section 202 as read with section 205 of the Penal Code before Bhandari J in the High Court. The first appellant replied to the charge, 'We killed him, but that was not intentional,' while the record showed no reply at all from the second appellant. The trial judge nevertheless entered pleas of guilty to manslaughter for both, and each appealed against sentence, disputing a Radiologist's age assessment of 'well over and above 20 years'. The Court of Appeal held that section 207(1) of the Criminal Procedure Code uses mandatory language: the substance of the charge and its essential ingredients must be explained to the accused in a language he understands, his own words correctly translated and carefully recorded, and a plea of guilty recorded only where there is an admission, as Adan v Republic requires. The first appellant's reply was equivocal and had to be treated as a plea of not guilty, following Matu s/o Gichimu v Republic; there was no ground for recording a plea of guilty from the second appellant. The irregularities occasioned a failure of justice and were not curable under section 382 of the CPC. Applying Fatehali Manji v Republic, the court, sitting as a first appellate court, allowed both appeals, quashed the convictions, set aside the sentences, and ordered a retrial before another judge of the High Court at Mombasa, with the appellants remanded and their ages accurately assessed before the retrial concluded. The panel of Kneller, Chesoni and Nyarangi delivered a single judgment.

Key legal issues

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01

Validity of the plea of guilty under section 207(1) of the Criminal Procedure Code

Holding

The first appellant's reply was equivocal and the second appellant gave no reply; no plea of guilty could properly be entered for either

Reasoning

Section 207(1) uses mandatory language requiring the substance of the charge to be stated to the accused, who must be asked whether he admits or denies it. The accused's own words must be correctly translated and recorded. The first appellant's reply ('We killed him, but that was not intentional') was ambiguous and did not admit the charge; the record shows no reply at all from the second appellant, so there was no ground for a plea of guilty.

p. 2
02

Whether the irregularities were curable under section 382 of the CPC

Holding

The irregularities occasioned a failure of justice and were not curable

Reasoning

The trial did not satisfy the requirements for taking a plea; the ambiguity of the plea and the absence of any reply by the second appellant, together with disputed facts on the assault, meant the appellants did not have a satisfactory trial. Such defects go to the foundation of the conviction and cannot be cured under section 382.

p. 2
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Whether a retrial should be ordered

Holding

Yes; a retrial before a different judge of the High Court at Mombasa

Reasoning

The court sat as a first appellate court and applied the principles in Fatehali Manji v Republic on ordering retrials. Since an order for retrial is the proper order where an accused has not had a satisfactory trial, and the State Counsel supported a retrial, a retrial before another judge was appropriate, with the appellants on remand and their ages accurately assessed.

p. 2

Legal principles established

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  • Compliance with section 207(1) CPC entails explaining the charge and its essential ingredients to the accused in a language he understands, and recording his reply correctly; an equivocal reply is not a plea of guilty
  • An equivocal reply to a charge, including one using the plural, must be treated as a plea of not guilty
  • A retrial is the proper order where an accused has not had a satisfactory trial, following Fatehali Manji v Republic

Court orders

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  1. 1.The two appeals are allowed and the convictions quashed
  2. 2.The sentences are set aside
  3. 3.A retrial shall be held by some other judge at the High Court, Mombasa for the two appellants
  4. 4.The two appellants shall be kept in remand in the meantime
  5. 5.Appropriate steps shall be taken to obtain an accurate assessment of the ages of the two appellants before the re-trial is concluded
On appeal from
High Court of Kenya
Jurisdiction invoked
First appellate criminal appeal to the Court of Appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "King Katana & another v Republic [1984] KECA 63 (KLR)", Case Analysis (1984). Criminal Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/63/eng@1984-07-18

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