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Court of AppealDismissedCriminal Appeal No. 96 of 2014· [2015] KECA 651 (KLR)

Job Ntabo Ratemo v Republic [ [2015] KECA 651 (KLR)

Court of Appeal of Kenya
12 June 2015
1,985 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a guilty plea stands if the charge is explained in a language the accused understands, with no duty to explain the penalty.

What this practically means

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Executive summary

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The appellant was convicted on his own plea of guilty before the Chief Magistrate's Court at Kibera of defilement of a two-year-old child contrary to section 8(1) and (2) of the Sexual Offences Act and sentenced to life imprisonment. His first appeal to the High Court (Achode, J) was dismissed on 20 May 2013, the Judge finding the plea unequivocal and the sentence mandatory. On second appeal, counsel for the appellant abandoned all grounds save one: that Section 207(1) of the Criminal Procedure Code was not explained to him and that he was not warned of the legal consequences of his plea. The Court of Appeal (Waki, Nambuye and J. Mohammed, JJ.A) restated the scope of a second appeal under Section 361 as confined to matters of law, citing M'Riungu v R. Applying Section 207 and the Adan v R guidelines, the Court held that the substance of the charge was read to the appellant in a language he understood, he answered 'It is true', the facts were outlined and he admitted them, so the trial procedure could not be faulted. It held there is no duty on a court to explain the penalty for the offence charged, the life sentence being a mandatory minimum prescribed by statute leaving no discretion. The appellant had an opportunity to change his plea but did not, so the plea was unequivocal. The appeal was dismissed in its entirety. The binding propositions concern compliance with Section 207, the Adan v R guilty-plea procedure, and the absence of any duty to explain the penalty before conviction on a guilty plea.

Key legal issues

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01

Compliance with Section 207 of the Criminal Procedure Code in taking a guilty plea

Holding

The trial court complied with Section 207 and the Adan v R guidelines: the substance of the charge was read in a language the appellant understood, he answered 'It is true', facts were outlined and he admitted them

Reasoning

The Court applied Section 207 of the Code and the five-step Adan v R procedure. The appellant answered the charge, a plea of guilty was recorded, the prosecution outlined the facts, the appellant affirmed them and was given an opportunity to respond. He did not change his plea at any stage, so the procedure could not be faulted.

p. 4
02

Whether the court must explain the penalty before convicting on a guilty plea

Holding

There is no duty on the court to explain the penalty imposed for the offence charged; only the charge and its essential ingredients must be explained

Reasoning

The appellant argued the court failed to warn him of the legal consequences, including the sentence. The Court held that Section 207 and Adan v R impose no such duty; the life sentence for defilement under Section 8(2) of the Sexual Offences Act is a mandatory minimum leaving no judicial discretion, so no explanation of penalty was required.

p. 4
03

Whether the plea of guilty was unequivocal

Holding

The plea was unequivocal because the appellant admitted the charge and the facts and never sought to change his plea; penetration, the main ingredient of defilement, was not negated

Reasoning

The appellant stated 'It is true' to the charge and confirmed the facts as correct. He had an opportunity to dispute the facts or change his plea but did not. Nothing he said negated penetration, the essential ingredient of defilement, so the plea was unequivocal and the conviction was proper.

p. 4
04

Scope of a second appeal under Section 361 of the Criminal Procedure Code

Holding

A second appeal is confined to matters of law; the Court must accept findings of fact of the lower courts unless the decision is plainly wrong or matters were wrongly considered or omitted

Reasoning

Relying on M'Riungu v R, the Court reaffirmed that where appeal is confined to questions of law, it must not treat findings of fact as holdings of law and may interfere only where on the evidence no reasonable tribunal could have reached the conclusion reached below.

p. 3

Legal principles established

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  • On a second appeal confined to law, the Court will not interfere with findings of fact unless no reasonable tribunal could have reached that conclusion
  • For a valid guilty plea, the charge and all essential ingredients of the offence must be explained to the accused in a language he understands; there is no duty on the court to explain the penalty to the accused
  • The Adan v R procedure (charge explained, own words recorded, facts stated and opportunity to dispute, change of plea if disputed, then conviction) must be followed when taking a guilty plea under Section 207 of the Criminal Procedure Code

Court orders

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  1. 1.Appeal dismissed in its entirety

Authorities

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Legislation

  • Sexual Offences Act No. 3 of 2006Section 8(1) & (2)
  • Sexual Offences Act No. 3 of 2006Section 11(1)
  • Criminal Procedure CodeSection 207(1)
  • Criminal Procedure CodeSection 207 (full)
  • Criminal Procedure CodeSection 348
  • Criminal Procedure CodeSection 361
  • Constitution of KenyaArticle 49(1)

Cases cited (5)

  • ADAN V R
    [1973] EA 446
  • FATEHALI MANJI V R
    [1966] EA 343
  • MUIRURI V R
    [2003] KLR 552
  • ANDREW APIYO DUNGA V R
    [2010] eKLR
  • M'RIUNGU V R
    [1983] KLR 455
On appeal from
High Court of Kenya at Nairobi
HC.CR.A 314 of 2009
Jurisdiction invoked
Second appeal under section 361 of the Criminal Procedure Code, confined to matters of law

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, "Job Ntabo Ratemo v Republic [ [2015] KECA 651 (KLR)", Case Analysis (2015). Criminal Appeal No. 96 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/651/eng@2015-06-12

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