High Court 266 of 2017

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL APPEAL NO: 42 OF 2017 (From Conviction and Sentence in Criminal Case No: 18 of 2015 of the Senior Principal Magistrate’s Court at Gatundu) KENNETH MWAURA KIMANI ...................... APPELLANT -V E R S U SREPUBLIC ....................................................... RESPONDENT JUDGMENT 1. The appellant, KENNETH KIMANI MWAURA was charged with Defilement of a child contrary to Section 8 (1) of the Sexual Offences Act, No: 3 of 2006. The particulars thereof were that on the 15th day of December, 2015 in Gatundu South sub county within Kiambu County, intentionally and unlawfully did an act which caused penetration with your organ namely penis into genital organ namely vagina of one F N W a child aged four (4) years. 2. The appellant pleaded guilty by saying “The facts are true.” The trial court then convicted him on his own plea and sentenced him to serve the mandatory life imprisonment. 3. However, later the appellant lodged an appeal against the conviction and sentence on the basis that his response to the plea that “it is not true." By his submissions, the appellant avers that the facts of the case weren’t explained to him. There was no interpreter, he did not understand the language of the court, contrary to Article 50 (2) (m) of the Constitution 2010, a right to fair trial envisaged by the constitution. 4. Indeed Madam Ngalyukia for the respondent state, agrees with the appellant’s contention as raised. She alluded to page 2 of the proceedings where on issue of facts, the said facts are not explained to the accused. The inference hereof can only be construed that the said plea by the appellant was equivocal. See legal authority: Adan Vs Republic (1973) E.A. 445. The steps to be followed by a court recording a plea were set out. This court did not adhere to these principles. 5. FINDINGS For those reasons, the convictions and the sentence hereof be and is hereby set-aside. The case is hereby sent back for retrial, before a different magistrate, a fresh plea be conducted. The appellant to remain in custody until transferred to Gatundu Principal Magistrate’s Court before a differently constituted Court. JUDGMENT WRITTEN AND SIGNED BY: C. B. NAGILLAH JUDGE JUDGMENT DELIVERED, DATED AND COUNTERSIGNED IN KIAMBU HIGH COURT BY: THIS 4th DAY OF October 2017 JOEL NGUGI

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