[2022] KEHC 10176 (KLR)

AMM v Republic (Criminal Appeal E135 of 2021) [2022] KEHC 10176 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10176 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E135 of 2021

EM Muriithi, J

July 7, 2022

Between

AMM

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence by Hon. Sogomo P.M in Tigania P.M Court criminal Case(S.O) No. E007 of 2021 delivered on 8/2/2021)

Judgment

Introduction 1. The appellant herein, AMM was charged with incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that in the month of January 2020 and on the 6th day of February 2021 at [particulars withheld] village in Tigania Central sub-county within Meru County, being a male person caused his penis to penetrate the vagina of SK a girl aged 9 years who was to his knowledge his daughter. He also faced an alternative charge of committing indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the material period and place, he unlawfully and intentionally touched the vagina of SK, a girl aged 9 years old with his penis.

2. The appellant was convicted on his own plea of guilty in the main charge of incest and sentenced to serve 50 years of imprisonment.

The Appeal 3. The appellant preferred this appeal and raised 3 amended grounds of appeal that:a.The learned trial magistrate erred in law and fact by failing to exercise caution or vital safeguards prior to basing the conviction on his own plea of guilty.b.The consequence of pleading guilty to the charge was not explained.c.As per the circumstance of the case, an order for retrial would be an appropriate one.

Submissions 4. The appellant faulted the trial court for failing to warn him of the consequences of pleading guilty and the likely sentence. He relied on Alexander Lukoya Maliku v Republic (2015) eKLR, Boit v Republic (2002) eKLR, Gabriel Mwingirwa Mwongela v Republic Tigania S.O Case Number 20/2019, the Court of Appeal case of K.N v Republic(2016)eKLR, Adan v Republic(1973) EA 445, Hando S/O Akunaay v Republic (1951) EACA 307 and Philip Kipngetich Terer v Republic (2015) eKLR in support of his submissions.

5. The respondent opposed the appeal and urged that the appellant’s plea of guilty was unequivocal, because the appellant understood the nature of the proceedings, and thus he was barred by the provisions of Section 348 of the Criminal Procedure Code, from appealing, except as to the extent or legality of the sentence. It submitted that since the appellant understood the charge, its elements and the language of the court, the appeal was unmerited. It submitted that the appellant had failed either to demonstrate that he was subjected to unfair trial or he was influenced to plead guilty. It relied on the Court of Appeal cases of Alexander Lukoya Maliku v Republic (2015) eKLR, John Muendo M. v Republic (2013) eKLR and Obedi Kilonzo Kevevo v Republic (2015) eKLR in support of its submissions.

Analysis and Determination 6. This being the first appellate court, it has the duty of reevaluating the entire evidence and coming up with its own independent findings bearing in mind it did not have the opportunity of examining the witnesses. (See Okeno v R (1972) EA).

7. The issues for determination are whether the appellant’s plea of guilty was unequivocal to found a conviction, and whether a retrial ought to be ordered.

8. The appellant was arrested on 8/2/2021 and arraigned in court to face the charges herein. On that day, the substance of the main charge of incest and its elements were read to him in Kimeru and he responded, “True. It is the devil who got into me.” When the prosecutor read the facts to the appellant and produced various exhibits in support of the case, the appellant still admitted that those facts were true, and the trial court convicted him on his own plea of guilty. After he was called upon to mitigate, the appellant stated, “I am 28 years old with a wife and 3 children. I ask for leniency because the devil entered me.”

9. The appellant now wants the court to set aside his conviction because the trial court did not caution him against the consequences of pleading guilty and the magnitude of the sentence of the charge upon conviction.

10. The appellant is not disputing the fact that the charge, the particulars and the facts were read to him in a language he understood.

11. Section 20(1) of the Sexual Offences Act provides as follows:- “(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years, provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.”

12. It is clear that the both the charge sheet and the detailed particulars read over to the appellant clearly disclosed that the offence of incest as defined under section 20(1) of the Sexual Offences Act was committed. The appellant would have been shocked when the 50-year imprisonment sentence was pronounced as he was not warned of the dire consequences of the maximum penalty that the offence attracted.

13. The Court of Appeal in John Muendo M. v Republic [2013] eKLR, restated the law on plea taking as follows; “The legal principles to be applied in plea taking in all criminal cases were well enunciated in the locus classicus case of Adan vs Republic [1973] EA 445 where the Court 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 facts relevant to sentence together with the accused’s reply should be recorded.”

14. It is reasonable that in cases where the offence committed carries a heavy penalty such as death or life imprisonment, courts should exercise great caution when taking a plea of guilty especially where the accused is unrepresented. Further, the court must explain to the accused person the consequences of the guilty plea so that the accused knows exactly what to expect. I respectfully note the decision of Abdalla Mohammed v Republic [2018] eKLR (Korir J) where it was observed as follows:“The importance of the need for the court to be cautious when accepting a plea of guilty from an undefended accused person was stressed by Joel Ngugi, J in Simon Gitau Kinene v Republic [2016 eKLR when he stated that:“Finally, courts have always held that extra caution needs to be taken in the case of undefended defendants who plead guilty. I have previously held that where an Accused Person is unrepresented, the duty of the Court to ensure the plea of guilty is unequivocal is heightened.”

15. The appellant faced a serious charge of incest that carried a sentence of life imprisonment. It was thus the duty of the trial court to warn the appellant of the expected sentence in case he pleaded guilty to the charge. The Court of Appeal has had the occasion to consider the issue in the case of Elijah Njihia Wakianda v Republic (2016) eKLR, where it stated that:“… 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.”

16. Again, it has been held that it is a breach of the right to fair trial for the court to fail to warn an accused person of the danger of pleading guilty to a serious charge. In Fidel Malecha Weluchi v Republic [2019] eKLR (Odunga J) held that:“In this case since the charge which the appellant faced carried a prima facie minimum sentence of twenty years, 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”.

17. In Bernard Injendi v Republic [2017] eKLR, Sitati J. considered the issue and held 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.”

18. The appellant was unrepresented when he took plea before the trial court. It was the duty of the trial court to ensure that not only did the appellant understand all the ingredients of the charge, but he also understood the likely sentence in case he pleaded guilty.

19. The trial court in this case did not warn the appellant of the consequences of pleading guilty to the charge and that the offence attracted a life imprisonment. The failure to so warn the appellant amounted to a breach of the principle of fair trial as prescribed in article 50(2) of the constitution, and well established judicial practice in plea taking.

20. The upshot is that the plea entered against the appellant was not unequivocal, for failure to warn him of the consequences of pleading guilty to a serious charge that carried a sentence of imprisonment for life.

21. For that reason, the court will quash the conviction entered against the appellant and set aside the sentence of 50 years imprisonment.

Retrial 22. The appellant has sought a retrial. The general principle in regard to re-trials is that a re-trial should be ordered where it is unlikely to cause injustice to the accused. In Obedi Kilonzo Kevevo v Republic (2015) eKLR the Court of Appeal held that:“Generally, where a suspect has not had a satisfactory trial, the fairest and proper order to make is an order for a retrial. A retrial on the other hand will be ordered only where the interests of justice require it and if it is unlikely to cause injustice to the appellant. In the case of Muiruri –Vs- Republic (2003) KLR 552, the court considered a similar situation and held as follows, inter alia:“Generally, whether a re-trial should be ordered or not must depend on the circumstances of the case. It will only be made where the interest of justice require it and if 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 arraignment of the appellant; whether the mistakes leading to the quashing of the conviction were entirely the prosecution making or not.”In the criminal justice system, the law requires that the right of the appellant must be weighed against the victim’s right. In this case the appellant has been in confinement for three (3) years. Balancing the two competing interests, we believe justice demands that the case be re-heard in the subordinate court.”

23. This court has considered, as in Opicho v. R (2009) KLR 369, that the appellant, who has only been in custody for slightly over a year from the date of sentence on 8/2/2021, should be retried in a fair trial for the serious charge of incest against a minor girl of 9 years. An order for retrial is appropriate.

Orders 24. Accordingly, for the reasons set out above, the court quashes the conviction and sentence of imprisonment for 50 years for the offence of incest c/s 20(1) of the Sexual Offences Act and directs that the appellant shall be re-tried of the offence by the trial court at Tigania differently constituted.

25. The matter shall be mentioned on 14/7/2022 before the Principal Magistrate at Tigania for directions as to the retrial.Order accordingly.

DATED AND DELIVERED ON THIS 7TH DAY OF JULY, 2022. EDWARD M. MURIITHIJUDGEAppearances:Appellant in person.Ms. B. Nandwa Prosecution Counsel for DPP.