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Court of AppealPartially AllowedCriminal Appeal 204 of 2005· [2007] KECA 283 (KLR)

Patrick Kubale Wesonga v Republic [2007] KECA 283 (KLR)

Court of Appeal of Kenya
15 June 2007
ROR. S. C. OmoloPWP. N. WakiJOJ. W. Onyango Otieno
4,052 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a robbery convict because the magistrate never took his plea or recorded the language used at trial.

What this practically means

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Executive summary

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This was a second appeal against conviction for robbery with violence contrary to section 296(2) of the Penal Code, the appellant having been convicted by a Senior Resident Magistrate, sentenced to death, and having lost a first appeal before Sergon and Kariuki JJ of the High Court at Kakamega, who upheld both conviction and sentence. The Court of Appeal (Omolo, Waki and Onyango Otieno JJA) allowed the appeal after both counsel, including the State, agreed the appeal should be conceded. The court exhaustively reviewed the trial record and found that no plea was ever taken to the charge, despite the matter appearing before several magistrates, and that apart from a single mention entry, nothing on the record indicated the language in which the evidence, the accused's statement and the court's communications were conducted. Holding that representation by an advocate does not displace the court's constitutional and statutory duty to take the plea and explain the charge in a language the accused understands, the court found both omissions independently vitiated the trial. It further held that the trial court misdirected itself on the alibi defence by effectively shifting the burden of proof to the accused, and that the first appellate court failed in its duty under Okeno v R to analyse and evaluate the evidence afresh. The court also commented, for the benefit of lower courts, on procedural lapses: the trial proceeded to the defence before the prosecution formally closed its case, and the section 210 ruling stated the charge was proved before the defence was heard. The conviction was quashed, the sentence set aside, and the appellant set free forthwith.

Key legal issues

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01

Effect of failure to take the accused's plea

Holding

The failure to take the plea vitiated the entire trial before the subordinate court, notwithstanding that the accused was represented by counsel; the provisions of section 207 of the Criminal Procedure Code are mandatory.

Reasoning

Section 207 of the Criminal Procedure Code, using the word 'shall', obliges the court to state the substance of the charge and ask the accused whether he admits or denies it. Section 77(2)(b) of the Constitution entitles an accused to be informed in detail, in a language he understands, of the offence charged. The person charged is the accused, not his advocate, so the court's duty persists even with representation. Relying on R v Tambukiza s/o Onyonga and Adan v Republic, the court held the omission was a fundamental defect rendering the trial a nullity.

p. 4
02

Failure to record the language of the trial

Holding

The failure to indicate the language in which the proceedings were conducted also vitiated the trial, since an accused has a constitutional right to understand the proceedings and, if necessary, to an interpreter.

Reasoning

Only one mention-finding entry recorded interpretation as English/Kiswahili; at the hearing no indication was given of the language used by witnesses or the accused. Section 77(1)(b) and (f) of the Constitution require the charge to be explained in a language the accused understands and guarantee an interpreter. This duty cannot be waived merely because the accused has an advocate. The omission independently vitiated the trial.

p. 5
03

Alibi defence and burden of proof

Holding

The trial court erred in rejecting the alibi because it was not 'strong' about the time of the offence; this shifted the burden of proof onto the accused, contrary to Ssentale v Uganda.

Reasoning

An alibi need only be raised by the accused; the duty then shifts to the prosecution to disprove it. By criticising the alibi for not addressing the time of the attack, the magistrate effectively required the accused to prove a strong defence. The first appellate court compounded the error by failing to consider the alibi in its fresh evaluation of the evidence, contrary to the duty in Okeno v R.

p. 6
04

First appellate court's duty to re-evaluate evidence

Holding

The superior court failed in its duty to revisit, analyse and evaluate the evidence afresh, and so failed to detect the absence of a plea, the language omission and the alibi misdirection.

Reasoning

Citing Okeno v R, the first appellate court must analyse and evaluate the evidence afresh, making allowance for not having seen or heard the witnesses. On a second appeal the Court of Appeal may interfere on matters of law; the first appellate court's failure to identify these defects was itself an error of law justifying interference.

p. 5

Legal principles established

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  • The taking of a plea before hearing a criminal matter is mandatory, and representation by an advocate does not relieve the trial court of the duty to ensure the plea is taken and the charge explained to the accused in a language he understands.
  • An accused person who puts forward an alibi bears no burden of proving it; it is a misdirection to refer to any burden resting on the accused in such a case.
  • A trial court's failure to take the plea, or to indicate the language in which the trial was conducted, vitiates the entire trial.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction quashed
  3. 3.Sentence set aside
  4. 4.Appellant set free forthwith unless otherwise lawfully held

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Constitution of Kenyasection 77(2)(b)
  • Constitution of Kenyasection 77(1)(b)
  • Constitution of Kenyasection 77(1)(f)
  • Criminal Procedure Codesections 202 to 218 (Part VI)
  • Criminal Procedure Codesection 207(1), (2) and (3)
  • Criminal Procedure Codesection 214(1), first proviso
  • Criminal Procedure Codesection 210
  • Criminal Procedure Codesection 211
  • Criminal Procedure Codesection 215

Cases cited (4)

  • R vs. Tambukiza s/o Onyonga
    [1958] EA 212
  • Adan vs. Republic
    [1973] EA 445
  • Okeno v R
    [1972] EA 32
  • Ssentale vs Uganda
    [1968] EA 365
On appeal from
High Court of Kenya, Kakamega
H.C.CR.A. No. 133 of 2002
Jurisdiction invoked
Second appellate jurisdiction over a subordinate court conviction, being a second appeal from the High Court on matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Patrick Kubale Wesonga v Republic [2007] KECA 283 (KLR)", Case Analysis (2007). Criminal Appeal 204 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/283/eng@2007-06-15

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