John Munyao Maluta v Republic

2. At the outset, on the 26th January, 2010, the Appellant appeared before the court presided over by B.T. Jaden, Chief Magistrate (As she then was). The first count was read to the appellant who pleaded guilty. The court omitted to inform the appellant of the second count and its alternative. On the aforesaid date the prosecution was not ready to present facts to the appellant. For that reason the case was adjourned. 3. On the 2nd February, 2010 the matter was before S.K. Gacheru, Resident Magistrate. The court noted the omission aforestated and read charges to the appellant afresh. It is indicated in the typed proceedings, he pleaded not guilty to all the counts. The handwriting of the trial magistrate in the original proceedings is not legible. But facts of the case in respect of the first count having been presented would be an indication that the appellant pleaded guilty to the charge on the main count. Having admitted facts he was convicted and sentenced to life imprisonment. No orders were made on count two (2). 4. The appellant being aggrieved by the conviction and sentence appealed on grounds that: i. The conviction on Count 1 was a nullity as the learned trial magistrate made a crucial error in both law and fact by entering a plea on the count when it was clear that he denied the charge. ii. It was un procedural for the facts to be presented by the prosecution after he denied the charge. iii. His fundamental rights to fair trial as enshrined in Article 25(c) of the Constitution was violated which made the conviction unsafe. 5. At the hearing the appellant reiterated what was stated in the grounds of the appeal. 6. Ms. Maingi, learned state counsel opposed the appeal. She argued that the plea of guilty was entered after the appellant pleaded guilty. Stating that the plea was unequivocal she pointed out that no appeal lay except on sentence. She urged the court to find that the conviction was safe. She concluded her submission by calling upon the court to order retrial if it found that justice was not done. 7. This being the first appellate court, its duty is to subject evidence on record to a fresh review and scrutiny and come to its own conclusions bearing in mind, however, that it did not see nor hear witnesses testify. (See Okeno versus Republic [1972] E.A. 32). 8. Steps to be followed by a court taking plea were laid down in the case of Adan versus Republic (1973) EA. LR 445. This was adopted in the case of Kariuki versus Republic (1984) KLR 809 where the court held: “2. (a) the trial magistrate or judge should read and explain to the accused the charge and all the ingredients in the accused’s language or in a language he understands; (b) he should then record the accused’s own words and if they are an admission, a plea of should be recorded; guilty (c) the prosecution may then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts; (d) if the accused does not agree to the facts or raises any question of his guilt his reply must be recorded and a change of plea entered but if there is no change of plea, a conviction should be recorded together with a statement of the facts relevant to sentence and the accused’s reply – Adan v Republic (1973) EA 445.” 9. The charge having been read to the appellant, if he did plead guilty and facts presented like in the instant case in order for the court to convict, the facts should have disclosed on offence as charged. Facts presented were as follows: “…The 2 minors were later taken to Kathiani District Hospital and a P3 form filled thereafter. Accused was later arrested and charged with the offence herein. The P3 form for the

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complainant in court was assessed on his age which was found to be 9 years old and I have a P3 form report for the age which I wish to produce as exhibit 2. That is all.” Facts presented were admitted by the appellant who was convicted. 10. In his submission the appellant alleges that when he appeared in court he was confused. He was told he had admitted one of the charges but according to him he denied the charges. 11. It is trite law that a person who pleads guilty to a charge cannot appeal against the conviction. He can only question the legality of sentence (See Section 348 of the Criminal Procedure Code.) However, the case of Laurent Mpinga versus Republic (1983) TLR 166 – the court pronounced the criteria for interfering with a plea of guilty namely; “…upon the admitted facts the appellant could not have been convicted of the offence charged.” 12. To be guilty of the offence of defilement: i. the age of the complainant must be proved ii. there must be penetration of the complainant’s genital organ by that of the culprit. 13. There is an omission in the facts presented as to the findings of the medical practitioner who examined the complainant. The P3 form presented per the facts seem to have intended to prove the age assessment done on the complainant. Without proof of penetration, it was a misdirection on the part of the learned trial magistrate to convict on the presented facts. 14. Another omission that was evident was failure to fix the case for hearing after the appellant denied the second count and the alternative charge. 15. Section 207 (3) of the Criminal Procedure Code provides: “If the accused person does not admit the truth of the charge, the court shall proceed to hear the case hereinafter provided.” This provision of the law was flouted by the trial court. The manner in which this case was handled was irregular. There was a misdirection on the part of the court which makes it prejudicial to the appellant. 16. The state counsel sought a retrial in the circumstances. The Court of Appeal has previously considered questions of when an order for retrial can be made. It has been held that each case depends on its particular facts but it should be made in the interests of justice. What also must be considered is whether upon consideration of the potentially admissible evidence a conviction may result (See Fatehali Manji versus Republic [1966] E.A. 343, Mwangi versus Republic [1983] KLR 522). 17. A consideration of the case that was presented before the court suggests that a conviction is likely to occur. In the circumstances I order a retrial. The appellant shall be produced before Machakos Chief Magistrate’s Court on the 8th December 2014 for a retrial. 18. It is so ordered. DATED, SIGNED and DELIVERED at MACHAKOS this 3RD day of DECEMBER, 2014. L.N. MUTENDE

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JUDGE

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