[2016] KEHC 2122 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL 174 OF 2015

AGGREY OKOTH OTIENO……………………..……APPELLANT

VERSUS

REPUBLIC…………………..……….…….……….RESPONDENT

(An appeal arising out of the judgment and sentence of Hon. E. K. Too RM in Criminal Case No. 832 of 2015 delivered on 24th August 2015 at the Chief Magistrate’s Court at Mavoko)

JUDGMENT

The Appellant was charged and convicted of the offence of stealing by servant contrary to section 268(1) as read with section 281 of the Penal Code. The particulars of the offence were that on the 10th December 2015, in Athi River within Mavoko Sub-County, Machakos County, the Appellant, jointly with others while being a turnboy of truck KAU 309T Trailer number ZB 6537, stole TMT bars 25 mm by 12 metres (22 pieces) and TMT bars 16mm by 12 metres (22 pieces) all valued as Kshs 239,601/=, being the property of NIBMA Enterprises which came into his possession by virtue of his employment. The Appellant was convicted on his own plea of guilty and was sentenced to 2 years imprisonment.

The Appellant is aggrieved by the judgment of the trial magistrate and has preferred this appeal against the conviction and sentence. The grounds of appeal are in his Memorandum of Appeal dated 24th December 2015 and filed in Court on the same date, and in his supplementary petition of appeal dated 15th January 2016 and filed in Court on 2nd February 2016. These are that the trial Magistrate failing to adequately and properly take and record a plea of guilty which was unequivocal, and that the plea as recorded was improper. Further, that the trial magistrate erred in law and fact by entering a plea of guilty whereas the facts outlined by the prosecution did not disclose an offence of stealing by a servant; by not giving him time to defend himself in Court; by not taking into consideration that the Appellant did not understand the language used when the plea was taken; by not considering that his brain was in disorder with a life history; by dismissing the Appellant’s mitigation, and by meting a sentence that was harsh and severe.

The Appellant’s learned counsel, Oduk & Company Advocates, filed written submissions dated 19th July 2016 upon directions given by this Court. It was argued therein that on plea taking on 17th December 2015, the Appellant is recorded as having responded in Kiswahili as “guilty”, and upon the facts being read to him that “the facts are correct”. Lastly, that on mitigation, the Appellant is recorded as having said “I pray for forgiveness of the court”.

It was submitted that the plea of guilty was equivocal and improper, relying on the decisions in Aboubakar Sidiki DIakite vs R, Criminal Appeal No. 1507 of 1992 that the word guilty is a technical expression, and in Baya vs Republic (1984) KLR 657 that the Accused’s own words in reply should be correctly translated in English and then carefully recorded. Further that it is not shown whether the Appellant did understand English or Kiswahili, nor were the words uttered in Kiswahili that were translated into the English word “guilty” recorded.

It was also argued that the facts read out in Court ought to have disclosed the offence of stealing by servant and that no contract of service in writing was produced in Court, nor was evidence given of the consignment or of the number of steel bars that were missing, and therefore that the element of asportation necessary to prove theft was lacking. Lastly, it was submitted that a retrial in this case would not serve the ends of justice, as the Appellant has been adequately punished.

Ms. Mogoi Lillian , the learned prosecution counsel, filed submissions dated 1st August 2016 wherein she conceded the appeal on the ground that the plea was equivocal, and hence the conviction and sentence was illegal, and reliance was placed on the case of Aden vs R on the guidelines for plea taking and the requirement that the exact words of the accused must be recorded.

As this is a first appeal, I am required to conduct a fresh evaluation of all the evidence and come to an independent conclusion as to whether or not to uphold the conviction and sentence. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic[1973] EA 32).

The issue in this appeal is whether the plea of guilty by the Appellant was unequivocal. The procedure to be applied in taking a plea of guilty were well enunciated in the case ofAdan vs Republic,[1973] EA 445 where the Court held 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.

(v) If there is no change of plea a conviction should be recorded and a statement of facts relevant to sentence together with the accused’s reply should be recorded.”

The procedure as laid out in Adan vs Republic (supra) is also provided for under section 207 of the Criminal Procedure Code which provides as follows:

(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.

Coming to the present appeal, the record of the trial court indicates that the proceeding during taking of the plea of the Appellant on 17th December 2015 was as follows:

“Before E.K. Too SRM

Prosecutor: CI Musyoka

Court Clerk- Tupet

Interpretation – English/Kiswahili

Accused Present

The Substance of the charge and every element thereof having been stated by the Court to the accused person in the language the he/she understands (English/Kiswahili) who being asked whether he/she admits or denies the truth of the charge(s) replies in Kiswahili:

Accused- Guilty

PROSECUTOR- Facts are that on the 10/12/15 the accused who is a turn boy and a driver who is at large were trusted by the complainant NIBMA enterprises to transport metal bars from Athi river plants to Nyeri and Kitale towns using motor vehicle prime mover registration No. KAU 309T which was pulling trailer ZB 6537 loaded with steel bars. After they delivered items, some of the steel bars were found missing. They were TMT bus 25m by 12m 22 pieces and TMT 16mm by 12meters 22 pieces both combined 44 pieces total value 239,601/= . Complainant reported to Athi River Police station and investigation commenced the police managed to arrest the turn boy but the driver is still at large. After the arrest of the turn boy the police did not recover the items. Accused was accordingly charged.

ACCUSED - facts are correct.

COURT- plea of guilty entered.

Accused convicted on his own plea of guilty.

E. K. TOO

SENIOR RESIDENT MAGISTRATE

PROSECUTOR - no previous records.

E. K. TOO

SENIOR RESIDENT MAGISTRATE

ACCUSED MITIGATION- I pray for forgiveness of court.

E. K. TOO

SENIOR RESIDENT MAGISTRATE”

The Appellant is reported to have replied that he was guilty to the charge. However, this is a technical legal term and a finding made by the Court after considering a response by an accused person to the charge as read to him or her, and there was thus either an error by the trial magistrate in not recording the exact words used by the Appellant, or in not explaining to the Appellant as to how to answer the charge sheet.

I also agree with the Appellant that there are no facts read to the Court or on record to show that that the elements of the charge were met, and therefore no offence was disclosed to which a conviction and sentence could be based. Section 268 provides for the offence of stealing as follows:

“(1) A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.

(2) A person who takes anything capable of being stolen or who converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say—

(a) an intent permanently to deprive the general or special owner of the thing of it;

(b) an intent to use the thing as a pledge or security;

(c) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;

(d) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;

(e) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner; and “special owner” includes any person who has any charge or lien upon the thing in question, or any right arising from or dependent upon holding possession of the thing in question.

(3) When a thing stolen is converted, it is immaterial whether it is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it; and it is also immaterial that the person who converts the thing in question is the holder of a power of attorney for the disposition of it, or is otherwise authorized to dispose of it.”

(4) When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes on reasonable grounds that the owner cannot be discovered.

(5) A person shall not be deemed to take a thing unless he moves the thing or causes it to move.”

The facts as narrated by the prosecution in Court did disclose that there were some bars that were stolen from the complainant, and the Appellant admitted that this was the case. However, the offence he was charged with was stealing by servant, and section 281 of the Penal Code provides as follows as regards stealing by clerks and servants:

“If the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he is liable to imprisonment for seven years.”

No evidence was in this regard given of the Appellant’s employment by the complainant, and to this extent that facts as narrated in court did not disclose the elements of the offence.

Arising from the foregoing reasons, I accordingly quash the conviction of the Appellant for the charge of stealing by servant contrary to section 268(1) as read with section 281 of the Penal Code. I also set aside the sentence imposed upon the Appellant for this conviction, and order that the Appellant be forthwith set free unless otherwise lawfully held.

It is so ordered.

DATED AND SIGNED AT MACHAKOS THIS 26th DAY OF OCTOBER 2016.

P. NYAMWEYA

JUDGE