High Court 7348 of 2019

VERSUS NK.........................................ACCUSED JUDGEMENT 1. The appellant herein, NK, was charged in the Machakos Chief Magistrate’s Court Criminal Case No. 1221 of 2015 with the offence of Incest Contrary to Section 20(1) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on the 30 th July, 2015 at Mumbuni Location in Machakos District within Machakos County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of HKK, a child aged 6 and ½ years, who was to his knowledge his niece. 2. The appellant also faced an alternative charge of Indecent Act with a Child Contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006 in that on the same day and the same place, the appellant intentionally and unlawfully touched the vagina of HKK, a child aged 6½ years with his penis. 3. On 10th August, 2015, the appellant was arraigned in court and the record shows that Interpretation: English/Kiswahili/Kamba and that the substance of the charge(s) and every element thereof having been stated by the court to the appellant, in the languages that he/she understands who being asked whether he/she admits or denies the truth of the charge(s) replies: TRUE. Similarly, after the facts were read to the accused the record indicates that he replied: All facts are True. 4. In his mitigation, the appellant sated that he had taken alcohol. The court then proceeded to sentence him to serve life imprisonment. 5. In his amended Grounds of Appeal, the appellant contends: 1. That the trial court erred in both law and fact by failing to exercise any caution or vital safeguards prior to basis his conviction on his plea of guilty. 2. That the consequences of pleading guilty to the charge was not explained to him. 3. That although he was convicted on his own plea of guilty the coram for 10 th August, 2015 does not indicate his presence in court hence his conviction is invalid. 4. That as per the circumstances of the case, an order for retrial would be appropriate. 6. Based on the fact that the court did not explain to the appellant the consequences of his pleading guilty to an offence whose prima facie mandatory sentence was life, the learned prosecution counsel, Ms Mogoi, conceded the appeal, but prayed that a retrial be ordered. However as this court has held before it is not automatic that this court must in those circumstances allow the appeal since the court has the duty to put the evidence to afresh scrutiny and arrive at its own determination. In Odhiambo vs. Republic (2008) KLR 565, the court said: “the court is not under any obligation to allow an appeal simply because the state is not opposed to the appeal. The court has a duty to ensure it subjects the entire evidence tendered before the trial court to a clear and fresh scrutiny and re-assess it and reach its own determination based on evidence”. 7. I have considered the material placed before me. 8. Section 194 of the Criminal Procedure Code provides as hereunder: Except as otherwise expressly provided, all evidence taken in a trial under this Code shall be taken in the presence of the accused, or, when his personal attendance has been dispensed with, in the presence of his advocate (if any). 9. I have perused the record of the proceedings. In the handwritten proceedings, the presence of the accused is not indicated. Instead there is what appears to be a standard stamp. With due respect such a procedure which applies a standard mode of indicating an accused’s presence is highly inappropriate in criminal proceedings. The certified copies of the proceedings themselves do not indicate that the appellant was present during plea taking. On the other hand, the language used is not clear since it is indicated as English/Kiswahili/Kikamba. To make matters worse, the explanation of the charges is similarly in a standard form stamp and does not indicate that the accused was male or female since both genders are used. 10. The Court of Appeal has had occasion to deal with what I would call “standard form recordings” in Elijah Njihia Wakianda vs. Republic [2016] eKLR in which it held that: “Criminal proceedings have serious implications on the life and liberty of persons accused depending on the offence charged. The criminal process is designed for the forensic interrogation and determination of guilt with various rights and safeguards built into it to ensure that only the guilty get to be convicted. Thus the heart of a criminal trial is the tendering of evidence by the prosecution in an attempt to establish the charge. That evidence is given on oath and tested at trial through the process of cross-examination. The accused person essentially gets the opportunity, if he chooses to, to confront and challenge his accusers. He also gets to make submissions and to persuade the court that he is not guilty of the matters alleged. He is also at liberty to testify on his behalf and call evidence on the matters alleged against him. He, of course, has no burden of any kind,

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the same resting on the prosecution to prove the charge against him beyond reasonable doubt. Given all the safeguards available to an accused person through the process of trial, the entry of a plea of guilty presents a rare absolute capitulation; a throwing in of the towel and a giving of a walkover to the prosecution and often at great cost. A conviction comes with its consequences of varying gravity. Thus it is that the courts, at any rate appellate courts, would not accept a plea of guilty unless satisfied that the same has been entered consciously, freely and in clear and unambiguous terms.” 11. The manner in which the plea was recorded in that mater had somewhat similarities to the instant case. The court noted that whereas there was only one charge, the record of the proceedings stated thus: “Court: The substance of the charge(s) and every element thereof has been stated by the court to the accused in a language that he understands who being asked whether he admits or denies the truth of the charge replies in Kiswahili:- “It is true.” 12. Commenting on this mode of recording pleas, the Court stated as follows: “With respect, we find this disturbing. It seems to us that this is part of a template used by courts at plea taking. That is why it speaks of “charge(s)” when there was a single charge and the rather odd “in a language he understands”, when it is more normal and logical to simply state the language used. This smacks of a mere going through the motions, a recital of ritual. While that may not much matter when the plea entered is one of not guilty followed by a trial with all its attendant safeguards, it assumes a critical dimension when the plea is one of guilty and leads to conviction. We think that it is good practice for the specific language used to state the elements of the charge be specifically stated. That should be established by specifically asking the accused what language he understands, and recording his answer before either using the language he mentions or ensuring a translator is present to convey the proceedings to him in the chosen language. We also think that the elements of the offence are not complete if the sentence, especially if it is a severe and mandatory sentence, is not brought to the attention of the accused person. One surely ought to know the consequences of his virtual waiver of his trial rights that the Constitution guarantees him. That did not occur here and yet the appellant was unrepresented calling upon the trial court to be particularly solicitous of his welfare. The officer presiding is not to be a mere umpire aloofly observing the proceedings. He is the protector, guarantor and educator of the process ensuring that an unrepresented accused person is not lost at sea in the maze of the often- intimidating judicial process.” 13. The manner of recording of a plea is provided for in section 207(1) and (2) of the Criminal Procedure Code provides as hereunder: (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. 14. The manner of recording plea of guilty was dealt with in Ombena vs. Republic [1981] eKLR where the Court of Appeal held that: “In Adan v Republic [1973] EA 445, the Court of Appeal laid down in the simplest and plainest terms the manner in which pleas of guilty should be recorded and the steps which should be followed. It is appropriate to set out the holding in full — ‘Held: (i) the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands; (ii) the accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded; (iii) the prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts; (iv) if the accused does not agree with the facts or raises any question of his guilt his reply must be recorded and change of plea entered; (v) if there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused’s reply should be recorded.” In this case it is not certain that the prosecutor stated the facts, or that the appellants were given an opportunity to dispute or explain the facts or to add any relevant facts. The bald record that the prosecutor said “Facts are as per charge sheets”, and that the charge was read over and explained a second time, is not in our view sufficient to enable us to be satisfied that the pleas were unequivocal. In the Adan case the court said, at p 447:

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“The statement of facts serves two purposes: it enables the magistrate to satisfy himself that the plea of guilty was really unequivocal and that the accused has no defence and it gives the magistrate the basic material on which to assess sentence. It not infrequently happens that an accused, after hearing the statement of facts, disputes some particular fact or alleges some additional fact, showing that he did not really understand the position when he pleaded guilty: it is for this reason that it is essential for the statement of facts to precede the conviction.” We are aware of how busy magistrates and judges are in this part of the world and it may be that the record does not do full justice to the proceedings as they were conducted. However we have to judge by the record as it is. In this case we are not satisfied that the pleas of the appellants can be safely accepted as unequivocal pleas of guilty, or that the convictions can safely be allowed to stand.” 15. It is therefore clear that the charge, the particulars and the facts must be read to the accused in his language or in a language he understands. This is my understanding of the decision in K N vs. Republic [2016] eKLR, where it was held that: “The procedure for taking plea follows a well-beaten path. The leading case, Adan v R (1973) EA 445 emphasises that an accused person must not only understand the language used at his trial but also appreciate all the essential ingredients of the offence charged before his plea can be taken to be unequivocal. This need for taking the greatest care where the accused admits the offence was explained many years before the decision in Adan (supra) in Hando S/o Akunaay v Rex (1951) 18 EACA 307 as follows; ‘…before convicting on any such plea, it is highly desirable not only that every constituent of the charge should be explained to the accused, but that he should be required to admit or deny every such constituent.’ Where an accused person who has been called upon to plead under section 207 of the Criminal Procedure Code in the subordinate court admits the charge, the proviso to subsection (2) requires the prosecution to outline the facts upon which the charge is founded. The truth or otherwise of the charge is a combination of three things, the charge, the particulars of the offence contained in the charge sheet or information, as the case may be, as well as the facts outlined where the accused pleads guilty. The facts therefore are as important part of a plea as the charge itself. The nature and elements of the offence in totality must be understood by the accused and the trial court must be satisfied about this before accepting them as true. We think the court should also explain to the accused person the natural consequence of pleading guilty, the conviction and likely sentence. In outlining the facts the prosecution’s role is to present the evidence that could have been proven if the case had gone to trial. Therefore for the court to accept a plea of guilty, the facts alleged by the prosecution must be accepted by the accused as accurate and they must, in turn be sufficient in law to constitute and disclose the offence charged, the proof of which must be beyond any reasonable doubt. It is therefore incumbent upon the prosecution, in proof of the charge, to present the exhibits that they would have relied on at the trial.” 16. In this case the record of the proceedings does not indicate the presence of the appellant during plea taking. It is not clear the language in which the plea was read to the appellant and the appellant’s exact response both to the charge and to the facts. The manner in which the proceedings were recorded was itself rather ritualistic. Although the proceedings show that the appellant pleaded guilty to the offence, in his mitigation, he stated that he was under the influence of alcohol. In my view, that if true would have constituted a defence. Therefore, the Court ought to have changed the plea of guilty and entered a plea of not guilty instead and proceeded with the hearing in the usual manner. 17. In this case, the offence with which the appellant was charged was a very serious offence carrying life imprisonment. Whether or not the appellant was aware of this fact is not clear. Just like in Elijah Njihia Wakianda vs. Republic (supra), the same court in Kennedy Ndiwa Boit vs. Republic [2002] eKLR, expressed the following sentiments: “Stopping there for the moment, it is abundantly clear to us that at no stage did the Magistrate warn the appellant of the consequences of his pleading guilty to the charge. Indeed the appellant’s plea in mitigation that “I am asking for pardon” clearly shows that the appellant was wholly unaware that he ran the risk of being sentenced to death… Mr. Mbeche who argued the appellant’s appeal before us told us that the appellant’s plea was unequivocal. If that was all the complaint we had to deal with, we doubt, on the face of the record, whether it would have succeeded. The High Court rejected that complaint on first appeal to that court (Etyang & Omondi-Tunya, JJ) but in rejecting the appeal, the learned Judges of the High Court said absolutely nothing about the failure by the trial Magistrate to warn the appellant of the consequences of his pleading guilty. The High Court’s failure to address that issue is a question of law which entitles us to interfere with their finding and that of the Magistrate.” 18. A similar opinion was expressed by the Court of Appeal in Paul Matungu vs. Republic [2006] eKLR where it was held that: “In offences carrying death sentence, it is essential for the court to warn the accused of the consequences of his pleading guilty namely that he may be sentenced to death if he pleads guilty…What we find difficult to appreciate however, is that after the appellant had stated in response to the charge that “That is true”, what followed was that he was warned of the consequences without specifically stating in what way he was warned and what constituted the warning and making it clear in the record that that warning made it clear to the appellant that he faced death as the mandatory sentence for the offence he was pleading guilty to. Further there is nothing to show that after the warning was administered, the appellant was asked whether he understood the waring so that when he is recorded to have stated after the warning that “That is true”, one is not certain whether those words were in response to the warning given or whether he was still insisting on his plea of guilty to the charge as the court recorded. In our view, after the warning, the court should have enquired whether the appellant understood the warning and if he said he understood the warning then the charge should have been put to him afresh and that all that should have been recorded.”

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19. Whereas one may argue that the said warning only applies to capital offences, in Bernard Injendi vs. Republic [2017] eKLR, Sitati, J found that: “Finally, the learned trial Magistrate failed to warn the appellant of the consequences of the plea of guilty and this was particularly critical because of the long sentence which awaited the appellant upon pleading guilty to the charge facing him. In the Paul Matungu case (above) the Court of Appeal quoted from Boit vs- Republic [2002] IKLR 815 and stated that a trial court which accepts a plea of guilty must clearly warn the accused person of the consequences of a plea of guilty and further that an accused must be made to understand what he is pleading guilty to and after the warning the court should again read the charge to the accused person and thereafter record the response by the accused in words “as nearly as possible in his own words”. I am convinced that if the appellant in this case had been appropriately warned about the twenty years term of imprisonment, he would have reconsidered his plea of guilty.” 20. In this case since the charge which the appellant faced carried a life imprisonment, it is my view that in such serious offences where the sentences may either be long or indefinite, the Court must ensure not only that the accused understands the ingredients of the offence with which he is charged at all the stages of the plea taking but that he also understands the sentence he faces where he opts to plead guilty. That in my view is what is contemplated under Article 50(2) of the Constitution which provides for the right to a fair trial. Whereas the said Article prescribes certain ingredients of a fair trial, the Article employs the use of the word “includes” which means that what is prescribed thereunder is not exclusive but just inclusive since Article 19(3) of the Constitution provides that (3) The rights and fundamental freedoms in the Bill of Rights “do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter” while Article 20(3)(a) thereof enjoins the Court to “develop the law to the extent that it does not give effect to a right or fundamental freedom”. 21. I therefore agree that the manner in which the proceedings were conducted violated the appellant’s right to fair trial and that the plea of guilty was in those circumstances not unequivocal. 22. What is the course available to the Court in such circumstances? In other words, should the Court order a retrial? The Court of Appeal in the case of Ahmed Sumar vs. R (1964) EALR 483 offered the following guidance: “...in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; 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 retrial should be ordered;......” 23. The Court of Appeal likewise had the following to say in the case of Samuel Wahini Ngugi vs. R [2012] eKLR: - “The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar vs. R (1964) EALR 483, the predecessor to this Court stated as concerns the issue of retrial in criminal cases as follows: ‘It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered…In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person’ That decision was echoed in the case of Lolimo Ekimat vs. R, Criminal Appeal No. 151 of 2004(unreported) when this Court stated as follows: ‘…the principle that has been accepted to courts is that each case must depend on the particular facts and circumstances of that each case but an order for the retrial should only be made where interests of justice require it.’” 24. In Muiruri –vs- Republic (2003), KLR, 552 and Mwangi –Vs- Republic (1983) KLR 522 and Fatehali Maji vs. Republic (1966) EA, 343 the view expressed was that: - “Although some factors may be considered, such as illegalities or defects in the original trial, the length of time elapsed since the arrest and arraignment of the appellant; whether mistakes leading to the quashing of the conviction were entirely the prosecution’s making or not; whether on a proper consideration of the admissible or potentially admissible evidence a conviction might result from a retrial; at the end of the day, each case must depend on its own particular facts and circumstances and an order for a retrial should only be made where the interests of justice requires it.” 25. Makhandia J. (as he then was) in the case of Issa Abdi Mohammed vs. Republic [2006] eKLR opined that: - “An order for retrial would have been most appropriate in the circumstances of this case. To do so however, in the circumstances of this case would cause irreparable prejudice to the appellant since the prosecution may have become wiser and would wish to plug the loopholes already alluded to in this judgment. In the result there is only one channel left to this court and that is to allow the appeal, quash the conviction and set aside the sentence. The appellant may be set at liberty

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forthwith unless otherwise held on a lawful warrant.” 26. In this case the appellant was convicted on 10 th August, 2015. He has served 3½ years. However, the offence facing him was a serious offence whose sentence is also heavy. Just like the Court of Appeal in Elijah Njihia Wakianda vs. Republic (supra) I quash the conviction and set aside the sentence. I set the clock back so the process is restarted on proper footing. In consequence, I direct that the appellant shall be presented before the Chief Magistrate's Court at Machakos for the purpose of taking a fresh plea to the charge. 27. However, any resulting sentence, if at all, will where appropriate, take into account the period the appellant spent in custody. 28. It is so ordered. Judgement read, signed and delivered in open Court at Machakos this 28th day of May, 2019. G V ODUNGA JUDGE In the presence of: Appellant in person Ms Mogoi for the Respondent CA Geoffrey

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