Republic of Kennya v Republic & 1 other

to add any relevant facts despite him noting that the Appellant was oblivious (unaware of the surrounding sentence). 3. THAT the Learned Trial Magistrate erred in Law and facts by misdirecting himself and relying on imaginary assumption that the Prosecutor failed to adduce evidence in Court to prove the Appellant knew that victim was below 18 years which ought to have been produced as a basis for conviction and sentence. 4. THAT the Trail Magistrate erred in Law and fact by convicting the Appellant to serve 20 years sentence imprisonment was excess. 5. THAT the Learned Magistrate erred in Law and facts by convicting the Appellant on a defective Charge Sheet as there was nothing on record or medical report showing that the Claimant was defiled (She never reported the incident to police on that 6th day of October 2013. 6. THAT the Learned Trial Magistrate erred in Law and the fact by relying on lusty evidence as a basis of convection and sentence. 7. THAT the learned magistrate erred in Law and fact in totally disregarding the testimony of the appellant. 8. THAT the Learned Magistrate erred in Law and facts by convicting and sentencing the Appellant to serve 20 years sentence imprisonment without considering the age of the Appellant. 9. THAT the Trail Magistrate erred in Law and facts by not considering the Appellant’s mitigation. 10. THAT my Lord I pray to be served with copies of proceedings to enable me adduce more grounds during hearing. 6. In his written submissions filed in court on 20 th April 2017, the appellant stated that the plea was not properly taken as there was no record that he pleaded guilty. He maintained that the law on recording a guilty plea was not observed or adhered to by the trial court. 7. The appellant further submitted that the age of the complainant was not properly ascertained before he was convicted of the offence whose sentence varies with age. Lastly, the appellant argued that the trial court was wrong in convicting him on a case wherein not only was there no proper complainant but that the documents produced as exhibits did not support the charge. He argued that the trial court ought to have taken note of the complaint’s behaviour before convicting him. He urged the court to quash his conviction. 8. Mr. Otieno, learned counsel for the state did not oppose the appeal and that the guilty plea was not unequivocal in view of the fact that the appellant did not confirm the facts of the case when the same was read out to him by the prosecutor and that instead, the appellant qualified his plea. He further noted that no guilty plea was entered against the appellant by the trial magistrate who instead ordered for the appellant’s mental assessment before passing his sentence. Mr. Otieno further faulted the trial court for failing to record the plea that had been entered and for proceeding to sentence the appellant before giving him an opportunity to tender his mitigation. 9. The state counsel also observed that it was necessary for the age of the complainant to be proved owing to the age dependant minimum sentences provided for under the Sexual Offences Act, an exercise which the trial court and prosecution did not bother to undertake. 10. I have carefully considered the grounds raised in the petition of appeal, the record of appeal and the

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submissions of Mr. Ondari and Mr. Otieno for the appellant and the state respectively. This is a first appeal and the duty of the appellate court therefore is to evaluate the evidence tendered before the trial court with a view to arriving at its own independent conclusions. (See Okeno vs Republic (1973) E.A 353. 11. As I have already noted in this judgment, the appellant is reported to have pleaded guilty to the main count of defilement and to count 2 in which case, the evidence of the witnesses was not taken. 12. Under above circumstances, this court must examine the plea as recorded by the trial court in order to satisfy itself that it meets the threshold of the principles set by Section 207 of the Criminal Procedure Code which stipulates as follows: 207. Accused to be called upon to plead “(1) The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement. (2) If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary: Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the fact upon which the charge is founded. (3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided. (4) If the accused person refuses to plead, the court shall order a plea of “not guilty” to be entered for him. (5) If the accused pleads— (a) that he has been previously convicted or acquitted on the same facts of the same offence; or (b) that he has obtained the President’s pardon for his offence, the court shall first try whether the plea is true or not, and if the court holds that the evidence adduced in support of the plea does not sustain it, or if it finds that the plea is false, the accused shall be required to plead to the charge.” 13. The above principals were further elucidated in the celebrated case of Adan vs Republic (1973) EALR 445 as follows: “When a person is charged, the charge and the particulars should be read out to him so far as possible in a language which he can speak and understand. The magistrate should explain to the accused person all the essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of plea to “not guilty” and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts, relevant to sentence. The statement of facts and the

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accused’s reply must of course, be recorded.” 14. In the present case, the full extract of the proceedings recorded by the trial court when taking plea were as follows: 17/10/2013 Before Hon. B. Ochieng (Mr.) Ag. SPM Prosecutor IP Kirui CC: Rose/Bett Accused Present. Court: I order that the accused’s age be assessed. Mention later. B.O. OCHIENG – Ag SPM. Later: Coram as before Accused Present Prosecutor: the accused has been examined by a doctor and he has been found to be above 18 years. The report is here. Court: I have gone through the report and I find that the accused is above 18 years according to the doctors. I order that he takes the plea. B.O. OCHIENG – Ag SPM. Court: Charge sheet read out and explained to accused in Kiswahili which he understood and responded as follows;Count No. 1 Accused: it is true. We did. Count No. 2 Accused: it is true Prosecutor: The facts are that on 6th October 2013 at Enoosaen Trading centre Transmara at 2.00 p.m. the complainant in this case a 15 years old a pupil at IIbashire Primary School in class 7 went to trading Centre at 2.00 p.m. with a sister to shave heads. As they went they met the accused person near a hotel. Accused told the complainant that the owner of the hotel wanted to see the complainant since the complainant knew the owner of the hotel. They went with accused. Accused took the two children to a house adjacent to the hotel. They stayed for some time. Accused started touching the subject’s body. The young girl went out. Accused closed the door. He pushed the complainant on bed. Started to have sex with her. They did it twice upto 6.00 p.m. when he released her. The subject complainant went out and found the sister had left. She went home. She never

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reported to anybody. On 14th October 2013 the accused person made a call to the complainant through his personal call. He informed the complainant that he wanted to go home to Kisii. The complainant told him that they go together with her. Accused though she was pregnant. Accused then took poison and consumed it. The public found accused had taken poison. He was rushed to the health centre. He was transferred to Kilgoris. On interrogation it was found that he tried to do that because of the relationship. He revealed so. They went to Enoosaen. Accused was arrested. Complainant in count no. 1 was taken to Kilgoris District Hospital for examination. P3 was filled. The P3 is dated 16 th October 2013. I produce it as exhibit P1. Accused was issued with P3 form. He was assessed at District Hospital. The P3 form is here. I produce it as exhibit P2. Later accused was charged with the two charges. Accused: the facts are she was the one calling me on phone. She came to my house. The reason I tried to poison myself she left a letter in my house. I looked at the last part. Court: I order that the mental status of the accused be established to determine if he is fit to plead. Mention on 18/10/2013. Accused remanded in custody. B.O. OCHIENG – Ag SPM. 18/10/2013 Before Hon. B. Oncieng (Mr.) Ag. SPM Prosecutor: IP Kirui CC: Bett Accused: present Prosecutor: The mental status has been done. Present it to the court. B.O. OCHIENG – Ag SPM. Court: I have gone through the mental exam report and it appears accused is fit mentally to plead and stand trial. I note the accused is a first offender and has mitigated. He faces count No. 1 defilement contrary to section 8 (1) as read with 8 (3) of the sexual Offences Act. Section 8 (3) of the Sexual Offences Act provides that the sentence to be not less than 20 years. Accused faces count No. 2 that is attempted suicide contrary to section 226 as read with section 36 of the penal code. The sentence prescribed is imprisonment not exceeding two years or with fine or with both. I have looked at the circumstances under which accused was charged especially with count no. 1 I really find pity that accused pleaded guilty to both counts at first instance and I believe that the was oblivious of the sentence. He is a young person and it appears all this is coming from adolescence crisis. It appears the complainant subject and the accused were having an affair which came out after he

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attempted the suicide. As much as I may pity him the law is straight jacket here. There is no two way about it (one count No. 1). There is a need to resistance. The judges and magistrates discretion in some of these cases as circumstances generally has be considered. Generally any law that takes away the magistrates and judges discretion should be declared unconstitutional. I order that accused be sentenced to serve 20 years imprisonment on count No. 1. The accused also to serve 1 one day imprisonment on count No. 2. My heart bleeds for him. Sentences will run consecutively. Right of appeal-14 days. B.O. OCHIENG – Ag SPM. 15. As can be seen from the above proceedings, it is quite clear that the appellant’s plea on both counts was not unequivocal because he did not admit the facts as read out to him but instead qualified the guilty plea after the facts were read out to him by explaining the reasons why he tried to poison himself. Furthermore, it is noteworthy that the trial court did not record a conviction him before passing sentence against the appellant contrary to the clear provisions of Section 207 of the Criminal Procedure Code. 16. In the present case, the age of the complainant was established to be 15 years according to the contents of the P3 form produced by the prosecution as Pexhibit 1 and I therefore find that the appellant’s contention that the age of the complainant was not established to be untrue. 17. Turning to the main gist of the appeal which is that the plea as recorded by the trial court was not unequivocal, I am in total agreement with the appellant that the trial court jumped the gun and proceeded to sentence the appellant to 20 years imprisonment without first complying with the correct procedure for recording a guilty plea as envisaged by section 207 of the Penal Code. I therefore find it quite ironical that the trial court appeared to sympathize with the appellant before passing the mandatory minimum sentence of 20 years against him. The trial court was under a duty to strictly observe the procedure for recording a guilty plea more so in such a serious case of where the minimum sentence is mandatory. The trial court needed to have satisfied itself that the appellant fully understood the charge and unequivocally responded to it. The trial court ought to have under the circumstances of this case, recorded a not guilty plea against the appellant and set down the case for hearing the moment he appeared to be qualifying his guilty plea by explaining what he did and blaming it on the complainant. 18. It is for the above reasons that I find that the instant appeal is merited and I therefore allow it by quashing the conviction and setting aside the sentence. I further order that the appellant shall be set at liberty forthwith unless he is otherwise lawfully held. Dated, signed and delivered in open court this 9th day of November, 2017 HON. W. A. OKWANY JUDGE In the presence of: - Mr. Otieno for the State - Mr. Magara for the appellant

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- Omwoyo court clerk

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