REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA CRIMINAL APPEAL NO.E026 OF 2021 MASISA KENNEDY AND JOHN GIBUSINA .....APPELLANTS VERSUS REPUBLIC............................................................RESPONDENTS JUDGMENT [1] The two appellants, Masisa Kennedy and Gibusina John, appeared before the Chief Magistrate at Busia charged with having suspected stolen property, contrary to S.323 of the Penal Code. It was alleged that on the 5 th October 2021 at Malaba township in Teso North Busia county, having been detained by No.218178 S/Sgt Etapal Ewalan and No.84009 Cpl Ronald Nyakundi in exercise of the powers conferred by S.26 of the Criminal Procedure Code, the two appellants were jointly found in possession of a m/cycle Reg No.KMFS 487 make Boxer red in colour, frame No.MD2A21BXMWM92338 reasonably suspected to be stolen or unlawfully obtained. [2] Both appellants pleaded not guilty to the charge on first appearance in court on 7 th October 2021, but changed the plea to that of guilty on the following day 8th October 2021, when matter was placed for mention to fix hearing date. Upon their own plea of guilty, the appellant were sentenced to serve (3) years imprisonment. Being dissatisfied with the sentence, the appellants filed separate appeals which were herein consolidated for hearing at the same time. [3] The grounds of appeal are similar for both appellants and are set out in the respective petitions of appeal dated 14 th October 2021. The hearing of the appeal proceeded by way of written submissions which were duly filed by the appellants and by the respondent in opposition to the appeal. [4] After due consideration of the appeal on the basis of the supporting grounds and the rival submissions, this court holds the opinion that the grounds in support of the appeals are no more than mitigating factors. It seems that the appellants have utilized this opportunity to mitigate afresh before this court with a view to having the sentence reduced or set aside altogether. [5] There is nothing in the supporting grounds to show that the sentence imposed upon the appellants by the trial court was unlawful or that it was inordinately high in the circumstances. Therefore, none of those grounds is meritable enough for this court to allow the appeals. However, a perusal of the trial court’s record during the plea taking process clearly indicated that the process was manifestly flawed for failure by the trial court to fully comply with the provisions of S.207 of the Criminal Procedure Code and indeed, to follow the guidelines set out in the celebrated case of Adan Vs. Republic [1973] EA 445. [6] These guidelines are outlined 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 [with] the facts or raises any question of his guilt his reply must be recorded and change of plea entered; and
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(v) If there is no change of plea a conviction should be recorded (emphasize added) and a statement of the facts relevant to sentence together with the accused’s reply should be recorded.” [7] Herein, the trial court did not record the conviction. This ended up with the appellants being sentenced without being convicted meaning that their plea of guilty was not unequivocal and that they were subjected to an unfair and unsatisfactory trial process in which they were prejudiced by being sentenced to serve three (3) years imprisonment. [8] Needless to say that a conviction provides the basis or foundation of the sentence and without it the sentence must invariably crumble together with the plea taking process undertaken by the trial court. It is for only this reason that the present appeals are allowed to the extent that the sentence of three (3) years imprisonment imposed upon the appellants by the trial court be and is hereby set aside. [9] But, in the interest of justice and without further prejudice to the appellants there shall be a re-trial of the appellants on the same charge. In Muiruri Vs. Rep (2003) KLR 552, it was “inter-alia” held that:- “(1) Generally whether a retrial should be ordered or not must depend on the circumstances of the case. (2) It will only be made where the interest of justice require it and it is unlikely to cause injustice to the appellant; Other factors include illegalities or defects in the original trial, length of time having elapsed since the arrest and arrangement of the appellant; whether the mistakes leading to the quashing of the conviction were entirely the prosecution reaching or not.” [10] In sum, the appeals are allowed with orders that the appellants shall be re-tried on the same charge before a different magistrate of competent jurisdiction. Ordered accordingly. J.R. KARANJAH JUDGE [Dated & Delivered this 3RD day of MARCH 2022]
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