Tobicho Wekesa alias Tero & 2 others v Republic

learned trial magistrate failed to consider the mitigation that they were remorseful. Reliance has been placed in the case of Benard Kimani Gacheru Vs Republic (2002)eKLR. The respondent on its part submitted that during plea taking, the charges were read out in Kiswahili, a language that the appellants understood and having pleaded guilty, the plea was therefore unequivocal and proper. On this limb, the case of Ombena Vs Republic (1981)eKLR has been cited. On sentence, it is submitted that the statute prescribes a minimum sentence of 15 years imprisonment which can be enhanced to life imprisonment. That in the circumstances the trial magistrate was extremely lenient. Having carefully considered the record, the grounds of appeal and the submissions, the sole issue for determination is whether the plea of guilty entered against the appellants was unequivocal. In Kiilu & Another vs. Republic [2005]1 KLR 174, the duty of the first appellate court was stated thus; An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses. Appeals from instances where the appellant pleaded guilty are governed by Section 348 of the Criminal Procedure Code which states; No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence. The court is thus estopped from entertaining a challenge on the propriety of the conviction unless it is shown that the plea was equivocal. In the celebrated case of Adan Vs Republic [1973] 1 EA 445 the court outlined the essential components that the appellate court ought to satisfy itself as follows; 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 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. The trial court record shows the following; “2.11.2020 Before Hon. N. Barasa SRM Prosecutor: Shabola Court Clerk: Matep Interpretation: English/Kiswahili Accused 1 : present Accused 2: Present Accused 3: Present The substance of the charge(s) and every element thereof has been stated by the Court to the Accused persons in the language that he/she

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understands who being asked whether he/she admit(s) or denies the truth of charge(s) replies in Kiswahili. Principal charge Accused 1: Kweli Accused 2: Kweli Accused 3: Kweli Court: Plea of guilty entered. Hon. N. Barasa – SRM Court Prosecutor: On 14.10.2020 at mid-day, the complainant a student at [Particulars Withheld] Institute of Technology with mental disability as returning to school when she met Accused persons who went after her, they got hold of her when she fell they begun raping her. Tobhic Wekesa was the first, Peter Tenge then Samuel. The complainant lost consciousness in the process. She was saved by passerby. She found herself at Sirisia Sub-County hospital. Accused persons were arrested by members of public. Treatment notes are before court to show she was treated. P3 form was filled when the matter was reported. The same are submitted to court as exhibits. Treatment notes PEXHB 1, P3 form PEXNB 2. Court asks accused persons to respond to facts if true. Each replies: Accused 1: Facts are correct Accused 2: Facts are correct Accused 3: Facts are correct. Court: Accused persons are each convicted on own plea of guilty. Court prosecutor: No record for all the 3 Accused persons. Accused1: I ask for forgiveness. I was born in the year 2000 Accused 2: I ask for forgiveness. I am a student Accused 3 in mitigation: I ask for forgiveness. I will not repeat.” On the importance of reading out facts, the Court of Appeal in Obedi Kilonzo Kevevo Vs Republic (2015) eKLR, held: The importance of statement of facts is that it enables the trial court to satisfy itself that the plea of guilty was really unequivocal and that the accused understood the facts to which he was pleading guilty and has no defence. The facts as read to the accused must disclose the offence. A plea is considered unequivocal if the charge is read to an accused person and he pleads guilty, thereafter, the facts are narrated to the accused person and he/she is once more asked to respond to the facts. It is important that both the statement of offence as contained in the charge sheet as well the facts as narrated by the prosecution must each disclose an offence. Otherwise, the plea is not unequivocal. It is indeed correct the appellants were not represented. The caution that the court ought to exercise in such circumstances were stated in Simon Gitau Kinene Vs Republic [2016] eKLR, where it was held; In those cases [where there is an unrepresented Accused charged with a serious offence], care should always be taken to see that the Accused understands the elements of the offence, especially if the evidence suggests that he has a defence.….To put it plainly, then, one may add that where an unrepresented Accused Person pleads guilty to a serious charge which is likely to attract custodial sentence, the obligation of the court to ensure that the Accused Person understands the consequences of such a plea is heightened. The court notes that the appellants tendered in their mitigation. The 1 st appellant asked for forgiveness and that he was born in the year 2000, the 2nd appellant on his part asked for forgiveness stating that he was a student and the 3 rd appellant asked for forgiveness and that he will not repeat. The mitigation such as the one tendered could not have been offered had the appellants not been aware of charges leveled against them. The court is thus satisfied that the appellants clearly understood what was at stake. The plea cannot be said to be equivocal. On the sentence handed down, Section 10 of the Sexual Offences Act provides for a prison term not less than fifteen years but which may be enhanced to life imprisonment. In this case, the appellants were sentenced to serve 15 years in jail. That is the minimum sentence provided by the Section. The court also notes that before sentencing, the trial magistrate called for a pre-sentencing report which was duly considered. One such

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aggravating factor is the fact that the appellants knew the victim to be of unsound mind and had just delivered two weeks prior. The judiciary’s sentencing policy guidelines guides the courts when sentencing. Some of its objectives are retribution, deterrence and rehabilitation. There is need to deter the appellants from such uncouth behavior. A custodial sentence was appropriate in the circumstances. The trial magistrate cannot be faulted for the sentence imposed which is hereby affirmed with the result that the appeal is hereby dismissed for lacking in merit. DATED AT BUNGOMA THIS 11TH DAY OF FEBRUARY, 2022 S. N. RIECHI JUDGE

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