REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CRIMINAL APPEAL NO. 24 OF 2015 J M M...........................................APPELLANT VERSUS REPUBLIC...............................RESPONDENT Being an Appeal from Original Conviction and Sentence in Criminal Case No. 137 of 2014 By Hon. P.M. GESORA (S.P.M.) sitting at Machakos Law Courts dated 29TH January, 2014 JUDGEMENT 1. The Appellant herein J M M was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act. The Particulars were that on the 26 th day of January, 2014 at [particulars withheld] Sub-Location within Mwala District of Machakos County being a male person caused his penis to penetrate the vagina of D K M a child aged 12 years who was to his knowledge his sister. The Appellant also faced an alternative charge of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act with the particulars being that on the 26th day of January, 2014 at [particulars withheld] Sub-Location in Mwala District within Machakos County unlawfully and intentionally indecently touched the vagina of D K M a girl aged 12 years with his penis. 2. The Principal charge was read to the Appellant in Kiswahili and he pleaded guilty to both the charge and facts. The trial Magistrate proceeded to enter a plea of guilt and convicted the Appellant and sentenced him to serve twenty five (25) years imprisonment. 3. The Appellant being aggrieved, raised the following grounds of Appeal:(1) That the charge was duplex. (2) That the Appellant was not sufficiently warned of the severity of the charge to which he was pleading guilty thereby making the plea unequivocal. (3) That the learned trial Magistrate erred in law and fact by exceeding the statutory minimum making the sentence excessive and unfair. The Appellant prays that the sentence be reduced to the statutory minimum or in the alternative the conviction and sentence be quashed and an order for retrial be made. 4. Parties agreed to canvass the Appeal by way of written submissions. It was submitted by the Appellant that the plea was not unequivocal and that he did not understand the charges properly and further that the sentence meted out against him by the trial court was in excess of the statutory minimum under Section
page 1 of 4
20(1) of the Sexual Offences Act. The Appellant finally faulted the trial court for not warning him against the consequences of pleading guilty to the charge. It was submitted for the Respondent that the Appellant’s Appeal lacks merit for several reasons. Firstly that the charge was not duplex since it clearly stated the Section establishing the offence and penalty thereof and which were stated to the Appellant in clear and unambiguous manner and therefore the plea entered was unequivocal. Secondly that the sentence imposed ought to be enhanced to life imprisonment as provided for in Section 20(1) of the Sexual offences Act since the victim of the crime was aged 12 years and thus below 18 years of age. It is contended by the Respondent that the sentence of 25 years imposed by the trial court is not provided for and should be enhanced to life imprisonment. Thirdly, that the trial magistrate did not err when he failed to warn the Appellant of the seriousness of the charge before taking the plea because there is no rule of law that a trial court has to warn an accused before he pleads guilty except in more serious offences like murder. The Respondent urged the court to dismiss the appeal, uphold the conviction and to enhance sentence from 25 years to life imprisonment. 5. This being a first appeal, this court is obligated to re-evaluate the evidence adduced before the trial court and to come to its own independent conclusion. 6. It is noted from the lower court record that a full trial did not in fact take place. The Appellant pleaded guilty to the charges which was read to him in English and Kiswahili and that the Appellant pleaded guilty to the charge and subsequently admitted the facts that were read out to him thereafter. The trial court duly entered a plea of guilty on the Appellants own unequivocal plea of guilty and was thus convicted. The Appellant duly presented his mitigation before he was sentenced to serve 25 years imprisonment. Having established the above facts as well as considering the submissions presented. I find the following issues necessary for determination namely: (1) Whether the appellants’ plea was unequivocal. (2) Whether the sentence imposed by the trial court was proper. (3) Whether it was necessary for the trial court to warn the Appellant before entering the plea of guilty. 7. As regards the first issue this court must bear in mind that Section 348 of the Criminal Procedure Code does not allow an appeal where an Appellant has pleaded guilty except to the extent of illegality of sentence. Section 207 (1) of the Criminal Procedure Code provides as follows:“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 or guilty subject to a plea agreement.” Again the court of Appeal for East Africa in ADAN =VS= REPUBLIC [1973] EA 445 set out the steps to be undertaken in recording a guilty plea as follows:“When a person is charged, the charge and particulars should be read out to him, so far as possible in his own language, but if that is not possible, then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those 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 guilt. 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 statements or facts or asserts additional facts which, if true might raise a question as to his guilt the Magistrate should record a charge 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 accused’s reply must of course, be recorded.”
page 2 of 4
Looking at the record of the lower court, I find that the charge had been read to the Appellant in English and Kiswahili and that he pleaded guilty to the charge. The facts were likewise read to him in the two languages to which he admitted and thereafter presented his mitigation before sentence was passed by the trial court. I have no doubt in my mind that indeed the Appellant had understood the charge and facts as read and explained to him by the trial court since he even presented his mitigation. Again the Appellant in his prayers herein seems to request this court to substitute the sentence to ten (10) years as provided for under Section 20(1) of the Sexual offices Act and which clearly indicates that he had entered an unequivocal plea before the trial court. There is therefore no doubt that he fully understood the charges facing him and therefore he cannot now turn around and deny the same. In the premises, I am satisfied that the Appellant had entered an unequivocal plea of guilty before the trial court. 8. As regards the second issue, it is noted that the Appellant was sentenced to serve 25 years imprisonment. The Appellant had been charged with an offence under Section 20(1) of the Sexual offences Act which provides as follows:“ Any male person who commits an indecent act or an act which causes penetration with a female persons who to his knowledge is his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten (10) years:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen (18) years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person”. Looking at the above provision it appears that the same provides for both a minimum and maximum sentence. If one was to go by only the first part of the Section without the proviso, even a life sentence would be sufficient as long as the sentence does not come below the minimum of ten years. It would appear to me that the first part of the statute provides for the minimum sentence while the proviso thereto provides for the maximum sentence. Hence the Section should be read conjunctively and not disjunctively since the offence in question is only one namely incest. It is my considered view that the statute provides for a maximum sentence of life imprisonment and the minimum sentence pegged at ten (10) years and that a trial court has discretion to impose appropriate sentence depending on the nature of the offence, age of the victim and mitigation offered by the perpetrator. The Respondent has urged this court to enhance the sentence to life imprisonment whereas the Appellant requests for the minimum sentence of ten (10) years. I am guided by the decision of the Court of Appeal in MK =VS = REPUBLIC [2015] eKLR which stated as follows:“We are satisfied that the sentence stipulated in the proviso to Section 20 (1) of the Sexual Offences Act is not a minimum mandatory sentence of life imprisonment. The proviso simply states that the trial court has discretion to mete out a maximum term of life imprisonment. Read in conjunction with the general provision in Section 20(1) we hereby state that the correct interpretation of the provision Section 20(1) is that a person convicted of incest when the female victim is under the age of eighteen years is liable to a term of imprisonment between ten (10) years and life imprisonment.........” The trial court indeed had meted out a sentence of 25 years imprisonment upon the Appellant after receiving his mitigation. I am satisfied that the trial court did consider the Appellant’s mitigation as well as the circumstances of the offence and the age of the female victim which was disclosed in the particulars of the charge sheet and the P. 3 form as well as the baptismal card to be 12 years. The trial court exercised its discretion and imposed a sentence of 25 years imprisonment. I find the said sentence was quite proper and legal and ought not to be disturbed since it fell between the minimum and life imprisonment provided under Section 20(1) of the Sexual Offences Act. 9. As regards the last issue, it is noted that indeed the trial court did not warn the Appellant on the consequences of pleading guilty to the charge. However, I find the failure to do so did not prejudice the
page 3 of 4
Appellant since all the essential ingredients of the charge and particulars were explained to him. Further there is no rule of law that a trial court has to warn an accused before he or she pleads guilty except in more serious offences like murder, robbery with violence. Besides the Appellant is deemed to have been aware that every offence committed is always tied with a penalty or some consequences. Hence at the time the Appellant pleaded guilty to the charge he was deemed to have appreciated the fact that some punishment therefor was to ensue. 10. In the result it is the finding of this court that the Appeal herein lacks merit the same is dismissed. The conviction and sentence by the trial court is affirmed. It is so ordered. Dated, signed and Delivered at MACHAKOS this 3rd day of November 2017. D. K. KEMEI JUDGE In the presence of:John Muithya Mutiso – appellant Machogu for Respondent C/A: Mungai
page 4 of 4