[2022] KEHC 13991 (KLR)

Awuor v Republic (Criminal Appeal E017 of 2022) [2022] KEHC 13991 (KLR) (14 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13991 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Appeal E017 of 2022

RE Aburili, J

October 14, 2022

Between

William Atito Awuor

Appellant

and

Republic

Respondent

(An Appeal from Judgment, Conviction and sentence delivered in the Chief Magistrate’s court at Siaya in Sexual Offence Case No. E014 of 2022 by Hon. L. Simiyu, Principal Magistrate on 15. 3.2022)

Judgment

1. The appellant William Atito Owuor was convicted of the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act. He was convicted on what appears to be his own plea of guilty and sentenced to serve 15 years imprisonment. This was on 15/3/2022. The minor was aged 14 years old. Aggrieved by the said conviction and sentence, the appellant filed this appeal on 17/5/2022 after obtaining leave of this court vide HC Miscellaneous Criminal Application No. E050/2022 on 9. 5.2022.

2. In his grounds of appeal, the appellant laments that:1. He did not know and was not made aware of the consequences of the offence in question hence he pleaded guilty out of ignorance.2. That the trial court failed to consider the fact that the appellant was not oriented in matter of law.3. That the trial Magistrate did not consider that the appellant was a first offender who came into conflict with the laws for the very first time.4. That this trial court be pleased to consider the appeal is solely entrenched on the sentence imposed and that, thus, review the same as per the provision of Article 50 (2) of the Constitution.5. The appellant prayed that the appeal be allowed entirely.

3. When the appeal came up for mention for directions, the appellant informed this court that he was only challenging sentence and he urged the court to help him saying he wanted to go home because he left his mother at home. That he was aged 20 years old and that he pleaded guilty because the police beat him and told him to plead guilty to the offence in order to be helped.

4. Opposing the appeal, Mr. Kakoi Senior Principal Prosecution Counsel submitted that the sentence of 15 years imprisonment was not Mandatory Minimum which was 20 years under the law.

5. On the Plea of guilty, counsel submitted that it was unequivocal in compliance with Section 207 of the Criminal Procedure Code.

Determination 6. I have considered the grounds of appeal, the oral submissions by the appellant and the opposing submissions by the Prosecution Counsel. I observe that the trial court record shows that appellant pleaded guilty to the charge of defilement which was read to him on 15/3/2022 in the language that he is said to have understood and he responded ‘True.’ That language is not indicated. The facts were read out to him in Dholuo language and he admitted that “facts are true, I had sex with the complainant,” hence he was convicted.

7. In mitigation, he stated that he was from a disfunctional family and his father never returns home. His mother does odds jobs. He is about 20 years old.

8. The trial court then considered the mitigation and age of accused and of the minor and the law, and pronounced the sentence of 15 years imprisonment.

9. The sentence imposed is not the Minimum Mandatory under Section 8 (3) of the Sexual Offence Act as the minor was aged 14 years old.

10. In my humble view, the plea was equivocal. I will give my reasons later in this judgment. Although there is nothing obvious on record that shows that the appellant did not understand the charge before pleading guilty to the charge, in that when facts were read to him, he said that they were true and that he had sex with the complainant, with the language of interpretation shown to be English/ Kiswahili and Dholuo.

11. There is, however, a problem with the court proceedings as conducted on that material day of Plea. The date is said to be on 15/3/2022. However, the trial magistrate’s name is not given. It is also not indicated in the Coram whether the accused was present. Only the Prosecution Counsel Ms. Nambisia and Court Clerk Mr. John Ogendo are indicated.

12. Anybody examining that court record on Coram cannot tell who the person conducting the court proceedings was and whether the accused was present as there is no indication.

13. I have highlighted those initial proceedings by circling with a pink highlight to demonstrate the problem. Therefore, albeit the sentence imposed is lawful and lenient under Section 8 (3) of the Sexual Offence Act and the accused appeared to have pleaded guilty to the charge, I find and hold that the proceedings were irregular as the Coram does not disclose the presiding judicial officer and or whether the person pleading to the charge was present.

14. I therefore find that the proceedings concluded on 15/3/2022 were irregular and fatally defective. I quash the said proceedings and set aside the conviction of the appellant as well as the sentence of 15 years imprisonment.

15. I further make the following orders, in the interest of justice:1. That the appellant shall be retried for the same offence and should he plead guilty, he should be warned of the consequences of such plea.2. That the trial court shall ensure that the court record reflects the presiding judicial officer and whether the accused is present on the dates set for plea or for any proceeding.3. That the language in which the accused responds or the charge is read out to him must be specifically indicated and that the alternative language shall not feature in the Coram as they breed confusion such that this court or anyone reading the Coram cannot tell whether it is the English or Kiswahili or Dholuo language that was used to read out the charge and in which language the accused/ appellant responded or replied.4. That the appellant shall be informed of his right to be represented by an advocate of his own choice and in the event that he cannot afford, he be advised to apply to the National Legal Aid Board for consideration.5. That the appellant William Atito Owuor shall appear before the Chief Magistrate’s court for fresh plea and retrial.

16. I so order.

17. This file is hereby closed.

DATED, SIGNED AND DELIVERED AT SIAYA, THIS 14TH DAY OF OCTOBER 2022R.E. ABURILIJUDGE