Julieta Luvasia & another v Republic

Criminal Procedure – conviction – where an accused person was sentenced by a Magistrate’s Court without being convicted of an offence - whether a sentence that was entered without a conviction was valid. Brief facts The Appellants had appealed against the sentence imposed by the Subordinate Court. At the Subordinate Court they faced two counts; the first being a charge of cutting and removing forest produce without authority contrary to section 52(1)(a) as read with sections 52(2) and 55(1)(c) of the Forest Act and the second being a charge of introducing logging equipment into a State forest without authority contrary to section 52(1) as read with section 52(2) of the Forest Act. The Appellants had pleaded guilty to the charges and thereafter the lower Court entered “PGE” in the Court file. The Appellants were sentenced without being convicted. Subsequently the Appellants filed the instant Appeal on grounds that the Subordinate Court erred in law and fact by convicting the Appellants on a plea of guilty that was equivocal and in sentencing the Appellants without conviction. Issues i. Whether a plea of guilty that was recorded via an abbreviation by a Subordinate Court was unequivocal. ii. Whether an Appellate Court could decipher an abbreviation to enter a plea of guilty on behalf of the Subordinate Court. iii. Whether a sentence that was entered without a conviction was valid. iv. Considerations applicable for an order of re-trial to issue. v. Whether a re-trial was to automatically follow where a conviction was vitiated by a mistake of the Subordinate Court for which the prosecution was not to blame Relevant provisions of the Law Criminal Procedure Code Section 207 207. 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 facts 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/3040/eng@2017-07-20 2

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Held 1. The procedure of taking pleas in subordinate courts was provided for under section 207 of the Criminal Procedure Code. The procedure was that: a. the charge and the particulars should be read out to the Accused person so far as possible in his own language, but if that was not possible then in a language which he can speak and understand; b. the Subordinate Court should then explain to the Accused person all the essential ingredients of the offence charged; c. if the Accused then admits all the essential elements, the Subordinate Court should record what the Accused has said, as nearly as possible in his own words, and then formally enter plea of guilty; d. the Subordinate Court 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; e. 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 to alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. That the statement of facts and the Accused’s reply must be recorded. 2. The Subordinate Court’s record indicated that the proceedings in that case were conducted in Kiswahili language. The Appellants replied to the charges and to the particulars of the charges in Kiswahili. They mitigated to the Court in the same language. The proceedings were conducted in a language that the Appellants understood well. 3. The Subordinate Court’s record indicated that the charges were read out to the Appellants and each of them replied that the charges were true. Facts were read out to the Appellants who replied that the charges were true. The plea, up to that stage was properly taken. 4. However instead of the trial Court entering a “plea of guilty”, it entered “PGE”. It was not known what the abbreviation meant but the Appellate Court guessed that they meant “plea of guilty entered.” However, a plea could not be based on assumptions. A guilty plea should not be left to any deductions or conjecture. It should be clear, unambiguous and unequivocal. It was even more so when the Accused faced a serious charge capable of attracting a custodian sentence. 5. The effect was that the Subordinate Court failed to enter a plea of guilty as required by section 207 of the Criminal Procedure Code. That was a misdirection on the part of the Subordinate Court. 6. In addition to the Subordinate Court failing to enter a plea of guilty, the Court did not enter a conviction. The Appellants were in that case sentenced for offences of which they had not been convicted of. That was a further misdirection on the part of the Subordinate Court. 7. The Appellants did not submit to the Appellate Court as to how the charges were defective. There was no defect in the charges. The Appeal would not have succeeded on that ground. 8. The Subordinate Court in the instant case failed to enter a plea of guilty and a conviction as required by section 207 of the Criminal Procedure Code. The prosecution was right in conceding to the appeal. 9. A re-trial would only be ordered where the interests of justice required it and if it was unlikely to cause injustice to the Appellant. Generally whether a re-trial should be entered or not depended on the circumstances of the case. It would only be made where the interests of justice required it and if it was unlikely to cause injustice to the Appellant. Other factions included illegalities or defects in the original trial, length of time having elapsed since the arrest and arraignment of the Appellant; whether the mistakes leading to the quashing of the conviction were entirely the prosecution making or not. 10. Even where a conviction was vitiated by a mistake of the trial Court for which the prosecution was not to blame, it did not necessarily follow that a re-trial was to be ordered, each case depended on its https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/3040/eng@2017-07-20 3

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particular facts and circumstances and an order for re-trial was only to be made where the interest of justice required. 11. The Appellants appeared in the Subordinate Court for plea on February 22, 2017 when they were sent to prison to serve sentences for offences for which they had not been convicted of. They had served slightly over a month before they were released on bond pending appeal. A re-trial would not serve justice in the instant case. Appeal allowed. Orders i. The plea taken by the lower Court on the February 22, 2017 and the subsequent sentence imposed therein were quashed. ii. ii. Appellants set at liberty. Citations Statutes None referred to Advocates Mukabwa ……………………………………………….. ………………………………………………………..…. …………………………………………………………….. JUDGMENT 1. The appellants herein have appealed against both conviction and sentence imposed by the Chief Magistrate, Kakamega Law Courts. The appellants were facing two counts. In count 1 they were charged with cutting and removing forest produce without authority contrary to section 52(1)(a) as read with section 52(2) and section 55(1)(c) of the Forest Act No.7 of 2005. The particulars of the offence were that on the 20th February 2017 at Kakamega Forest in Kakamega County within the Republic of Kenya they unlawfully and jointly cut and removed forest produce namely one indigenous tree valued at Kshs.50,000/-, the property of Kenya forest Service without authority from the Director of Kenya Forest Service. In count 2 they were charged with introducing logging equipment into a State forest without authority contrary to section 52(1) as read with section 52(2) of the Forest Act No.7 of 2005. The particulars of the offence were that on the same day, time and place as in count 1 they unlawfully and jointly introduced into the said forest logging equipment namely one panga each without permission from the Director of Kenya Forest Service. 2. The appellants had filed separate appeals but the appeals were later consolidated. The grounds of appeal as per their petitions of appeal are that:(1) The learned magistrate erred in law and fact by convicting the appellant on a plea of guilty that was not unequivocal. (2) That the learned magistrate erred in law and fact by convicting the accused person on a charge sheet that was incurably defective. (3) That the learned trial magistrate erred in law and fact in failing to convict the appellants and sentencing them without conviction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/3040/eng@2017-07-20 4

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(4) The learned trial magistrate erred in law and fact in failing to consider the mitigation of the appellants. 3. The appellants had appeared before the Chief Magistrate on the 22nd February 2017 wherein the charges were read out to them. They pleaded guilty to the charges. After they mitigated to the court they were each sentenced to pay a fine of Kshs.50,000/- and in default to serve four months imprisonment in count 1 and a fine of Khs.3,000/- in default to serve one month imprisonment in count 2. Being aggrieved by both conviction and sentence they filed their respective appeals. 4. The advocates for the appellants, Mr Mukabwa appearing for the 1st appellant and Ms Shirika appearing for the 2nd appellant did not make any submissions in the case. When the matter came up for hearing on 22nd May 2017, the State conceded to the appeal and left the court to make a ruling. 5. The lower court’s record indicates that when the appellants appeared before the trial magistrate the charges were read out to them in Kiswahili language. It is recorded that each one of them replied in kiswahili language that “ Its true” 6. The prosecutor then gave out the facts of the case to the effect that two Kenya Forest Service rangers were on patrol in Kakamega Forest when they found 4 women, among them the two appellants, cutting logs in the forest. Each of them had a bunch of logs. Four pangas were recovered. They were escorted to the police station. They were charged with the offense. The logs and pangas recovered from them were produced in court as exhibits. Upon being asked whether the facts were true, each of them replied that “ facts are true” 7. The magistrate was then required to enter a plea of guilty but wrote down in the court file – “PGE” The prosecutor then said that he had no records for the accused. The appellants mitigated. The 1st appellant said in mitigation that she pleaded for leniency as her husband was unemployed and that she was the bread winner for her family. The 2nd appellant mitigated that she was pleading for leniency as her husband was mentally challenged. The magistrate then proceeded to impose the sentence. 8. The procedure of taking pleas in subordinate courts is provided for under section 207 of the Criminal Procedure Code and was re-stated in Adan vs Republic (1973) EA 446. The procedure as set out in that case is that the charge and the particulars should be read out to the accused person so far as possible in his own language, but if that is not possible then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits 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 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 to alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. That the statement of facts and the accused’s reply must be recorded. https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/3040/eng@2017-07-20 5

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9. The lower court record indicates that the proceedings in that case were conducted in Kiswahili language. The appellants replied to the charges and to the particulars of the charges in kiswahili language. They mitigated to the court in the same language. I then have no doubt that the proceedings were conducted in Kiswahili language that the appellants understood so well. Secondly, the court record indicates that the charges were read out to the appellants and each of them replied that the charges were true. Facts were read out to the appellants who replied that the charges were true. There is then no doubt that the plea, up to that stage was properly taken. However instead of the trial magistrate entering a “plea of guilty” he entered “PGE”. It is not known what these abbreviations mean but I guess that they meant “plea of guilty entered.” However, a plea cannot be based on assumptions. This was properly captured by Justice Joel Ngugi in Simon Gitau Kinene vs Republic (2016) eKLR where he stated that:“ … I do not think that a guilty plea should be left to any deductions or conjecture. It should be clear, unambiguous and unequivocal. It shall be even more so when the accused faces a serious charge capable of attracting a custodian sentence.” 10. The effect is that the magistrate failed to enter a plea of guilty as required by section 207 of the Criminal Procedure Code. This was a misdirection on the part of the magistrate. In addition to the magistrate failing to enter a plea of guilty, he did not enter a conviction. The appellants were in that case sentenced for offences of which they had not been convicted of. This was a further misdirection on the part of the learned trial magistrate. The advocates for the appellants did not submit to the court as to how the charges were defective. I have checked on the charges and the relevant provisions of the law and I see no defect in the charges. The appeal would not have succeeded on that ground. 11. In the foregoing, the learned trial magistrate in this case failed to enter a plea of guilty and a conviction as required by section 207 of the Criminal Procedure Code. The prosecution was right in conceding to the appeal. The plea taken by the trial magistrate on the 22nd February 2017 and the subsequent sentence imposed therein are hereby quashed. 12. Upon finding that the plea taken against the appellants was irregular, the question is whether I should order a re-trial in the case or I should discharge the appellants. A re-trial will only be ordered where the interests of justice require it and if it is unlikely to cause injustice to the appellant. In Muiruri vs Republic (2003) KLR 552, the Court of Appeal when considering the issue stated as follows:- 13. (1) Generally whether a re-trial should be entered or not must depend on the circumstances of the case. (2) It will only be made where the interests of justice require it and if it is unlikely to cause injustice to the appellant. Other factions include illegalities or defects in the original trial, length of time having elapsed since the arrest and arraigned of the appellant; whether the mistakes leading to the quashing of the conviction were entirely the prosecution making or not. In Opicha vs Republic (2019) KLR 369, the Court of Appeal sitting at Nakuru stated that:“ Even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a re-trial should be ordered, each case https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/3040/eng@2017-07-20 6

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must depend on its particular facts and circumstances and an order for re-trial should only be made where the interest of justice require it.” 14. The appellants appeared in court for plea on 22nd February 2017 when they were sent to prison to serve sentences for offences for which they have not been convicted of. They had served slightly over a month before they were released on bond pending appeal. I do not think that a re-trial will serve justice in the case. The proper order would be to discharge the appellants. I do thereby make an order that the appellants are hereby set at liberty. DELIVERED, SIGNED AND DATED AT KAKAMEGA THIS 20TH DAY OF JULY 2017. J. NJAGI JUDGE In the presence of: Mukabwa ……………………………………………….. for 1st appellant ………………………………………………………..…. for 2nd appellant …………………………………………………………….. for respondent Paul ………………………………………… …………… court assistant 1st appellant …………………………………………….. present 2nd appellant …………………………………………………….. present/absent https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/3040/eng@2017-07-20 7

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