REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MURANG’A CRIMINAL APPEAL NO. 60 OF 2018 JCM...................................................................APPELLANT VERSUS REPUBLIC...................................................RESPONDENT [Appeal from decision of M. Kinyanjui, Senior Resident Magistrate, in S.O. No. 60 of 2018 at Kandara dated 6th November 2018] JUDGMENT 1. The appellant was convicted of defilement on his plea of guilty. Being a minor, he was committed to Getathuru Rehabilitation School for a term of three years. 2. The particulars of the charge were that on 20 th October 2018 at K. area [particulars withheld] in Kandara Sub-County within Murang’a County, he caused his penis to penetrate the vagina of JNG [particulars withheld] a child aged 11 years. 3. The appellant lodged his original petition of appeal through Waceke Thindigua Advocates on 20th November 2018. A new firm of advocates, Githiga Kimani Advocates, lodged an amended petition on 24th January 2014 without leave of the court. The latter is obviously a nullity. But not all is lost because the purported amended grounds largely mirrored the previous petition. 4. The grounds of appeal can be clustered into four: Firstly, that the plea of guilt was equivocal; Secondly, that the lower court failed to warn the appellant of the consequences of pleading guilty; thirdly, that the learned trial magistrate sentenced the appellant without the benefit of an age assessment; and, fourthly, that the sentence was harsh and unconstitutional. 5. At the hearing of the appeal, learned counsel, Mr. Githiga Kimani submitted that the procedures of taking and recording a plea were not followed. He cited a number of precedents including Adan v Republic [1973] EA 445. He submitted further that the language of the court was unclear and that the appellant did not follow the proceedings. He also contended that the facts read out did not disclose the offence. Lastly, he submitted that an age assessment report was only filed in court after the conviction. 6. The appeal is contested by the State. Learned State Counsel, Mr. Mutinda, submitted that the plea of guilt was unequivocal. He argued that the facts and the exhibit (P3 Form) disclosed all the elements of the offence. He said that sentence handed down took into account the status of the minor. He said it was extremely lenient. He was of the view that it was not mandatory to assess the age of the appellant prior to the taking of the plea. I was implored to dismiss the appeal. 7. This is a first appeal to the High Court. I have examined the record; re-evaluated the facts and drawn independent conclusions. Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] E. A. 32. 8. The appellant was first presented to court on 23 rd October 2018; the same day he took plea. The charge was read to the appellant. The record clearly indicates: Interpretation - Kiswahili/English. That implies that there was translation from English into Kiswahili. Ideally, the words used by the appellant should be recorded as closely as possible. Adan v Republic [1973] EA 445. The record clearly shows his answer as follows: “It is true”. That must be what he stated in Kiswahili. 9. The facts were then read out in detail. The relevant part stated that on 20 th October 2018, the appellant followed the victim along a path and pulled her into a thicket. He removed her panties and inserted his penis into her vagina. The victim then heard her mother calling her name from the road. The appellant panicked and asked the victim to wear her panties. The latter disclosed to her mother what happened. She
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was taken to the hospital the same day. The P3 Form prepared at Kandara Hospital was produced as exhibit 1. 10. When the appellant was asked to respond, he stated as follows- “Facts are correct”. The prosecution then indicated that the appellant was a first offender. In mitigation, the appellant stated: “I have nothing to say. I was born on 6/6/2005.” 11. I have reached the conclusion that the appellant understood and followed the proceedings. He was a candidate in class eight. The argument that he did not follow the proceedings are not backed up by the record and are clearly an afterthought. 12. Learned counsel for the appellant argued that the facts read out did not establish the offence. I disagree. The facts stated that the appellant led the victim into the bushes and penetrated her. The P3 Form (exhibit 1) showed that there were lacerations on the vagina; hymen broken; blood seen from the vagina. The age of the victim was clear from the birth notification card (exhibit 2) which showed that she was born on 11th June 2007. She was thus 11 years old at the material time. 13. The nature of the charge did not entitle the appellant to pro bono counsel from the State. As I will discuss shortly, the nature of the lenient punishment given in this case did not require the court to warn the appellant of the consequences of his plea of guilt. 14. I agree with the learned prosecution counsel that it was not a requirement or even practicable to call for an age assessment report before taking the taking of the plea. The trial court had the benefit of seeing the appellant on the date of the plea. 15. From the date of birth that he gave in mitigation and his looks, there was no doubt he was well below 18 years. I believe the order for an age assessment was out of an abundance of caution. True, the report was obtained after the sentence but it would only have confirmed the obvious: the appellant was a minor. Since the sentence handed down took into account that he was a minor, I find that he suffered no prejudice. 16. The sentence was informed by the need for rehabilitation and to secure his education. The learned trial magistrate called for a Children Officer’s Report before the sentence. It is dated 10 th January 2019. It showed that the appellant was associating with school drop-outs and becoming deviant. It recommended that the appellant “be placed at Getathuru Rehabilitation Centre for three years where he will undergo behavioural rehabilitation and continue with his primary school education.” 17. The appellant was committed to Getathuru Rehabilitation School for a term of three years subject to a vacancy. In the meantime, he was held at Murang’a Juvenile Remand Home. The vacancy was confirmed on 15 th January 2019 when he was formally committed to the institution. The right of appeal was explained on the record. 18. Under section 8 (1) and (2) of the Sexual Offences Act, the minimum sentence would have been life imprisonment. But the court considered that the appellant was a minor and a first offender. It also considered the need for rehabilitation and education. I find that the learned trial magistrate fully complied with sections 190 and 191 of the Children Act; and, that the sentence was well thought out and quite lenient. 19. In the end I find that the entire trial was fair and in conformity with the Constitution and the Children Act. 20. The upshot is that the appeal lacks merit and is hereby dismissed. It is so ordered. DATED, SIGNED AND DELIVERED AT MURANG’A THIS 8TH DAY OF OCTOBER 2019. KANYI KIMONDO JUDGE Judgment read in open court in the presence ofThe appellant. Mr. Mwaniki holding brief for Mr. Kimani for the appellant instructed by Githiga Kimani Advocates. Ms. Keya for the Republic instructed by Office of the Director of Public Prosecutions. Ms. Dorcas & Ms. Elizabeth, Court Clerks.
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