[2019] KEHC 8462 (KLR)
The trial court erred by failing to warn the appellant of the consequences of pleading guilty to the serious offence of rape, resulting in an equivocal plea and a denial of the appellant's right to a fair trial. Given that the appellant has already served more than two-thirds of the minimum sentence for rape, and...
Source-derived case information.
- Citation
- [2019] KEHC 8462 (KLR)
- Parties
- Appellant: Benedict Fwamba Wakwabubi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 216 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction quashed, sentence set aside, no retrial ordered, appellant to be released unless otherwise lawfully held
- Judges
- EM Muriithi
- Legal Topics
- Rape Offence, Plea of Guilty, Sentencing Principles, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benedict Fwamba Wakwabubi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in accepting the appellant's plea of guilty without warning him of the consequences for a serious offence such as rape.
- 2 Whether the conviction and sentence should be quashed due to the lack of an unequivocal plea and denial of fair trial rights.
- 3 Whether a retrial is justified given the time already served by the appellant.
Ratio Decidendi
The trial court erred by failing to warn the appellant of the consequences of pleading guilty to the serious offence of rape, resulting in an equivocal plea and a denial of the appellant's right to a fair trial. Given that the appellant has already served more than two-thirds of the minimum sentence for rape, and considering the prejudice that would result from a retrial after such a lengthy period in custody, the interests of justice do not warrant a retrial. The conviction and sentence are therefore quashed, and the appellant is to be released unless otherwise lawfully held.
Court Disposition
conviction quashed, sentence set aside, no retrial ordered, appellant to be released unless otherwise lawfully held
Orders
- The conviction for rape contrary to section 3 (1) (3) of the Sexual Offences Act is quashed.
- The sentence of 20 years imprisonment is set aside.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KABARNET
HCCRA NO. 216 OF 2017
BENEDICT FWAMBA WAKWABUBI.......................APPELLANT
=VERSUS=
REPUBLIC..................................................................RESPONDENT
[An appeal from the original conviction and sentence of the Principal Magistrate’s Court
at Eldama Ravine Cr. Case no. 1084 of 2012 delivered on the 10th day of December, 2012
by Hon. M. Kasera, PM]
JUDGMENT
1. The DPP did not oppose this appeal from the conviction and sentence of imprisonment for 20 years for the offence of rape contrary to section 3 (1) (3) of the Sexual Offences Act to which the appellant pleaded guilty and was sentenced on 10/12/2012. The appellant has therefore been in custody for 6 years and 4 months.
2. In urging this Court to quash the conviction, Ass. DPP Esther Macharia submitted as follows:
“DPP
Appeal is not opposed.
Appellant convicted on rape contrary to section 3 of the Sexual Offence Act and sentenced to serve 20 years imprisonment. The appellant pleaded guilty at the time of plea.
Offence of rape has a minimum sentence of 10 years and maximum of life imprisonment.
Due to the gravity of the offence the Court ought to have explained to the appellant the consequences of a pela of guilty.
The Court failed to execute its duty to warn the accused. I refer to case Caleb Wawire v. R. HCCRA No. 74 of 2016 at Kisumu.
Appellant’s right to fair trial were denied. Appellant convicted on 10/12/12 and has been in custody for 7 years. Ordering a retrial may be prejudicial considering the time he has been in custody and due to the time the prosecution may not be able to get prosecution witnesses. The time in custody is sufficient for correction of the appellant. I urge the Court to quash the conviction.
3. In sentencing the appellant, the trial Court had said:
“Considers mitigation. Notes that this is mere disrespect for senior members of the society that needs to be dealt with. Accused to serve 20 years imprisonment.”
4. This Court agrees with the DPP that in accepting the plea of guilty for the serious offence of rape, the trial Court ought to have warned the accused of the consequences of a conviction for rape, and, to satisfy itself that the accused’s plea was unequivocal. See Judiciary Bench Book on Criminal Procedure 2018, at paragraph 29 – 40.
Retrial?
See Opicho v. R (2009) KLR 369
5. I further agree with the DPP that as the appellant has been in custody for 7 years, there is no justification for an Order in the interests of justice for a retrial. If the appellant had been sentenced to 10 years imprisonment, the minimum sentence for the offence of rape contrary to section 3 (1) (3) of the Sexual Offences, he would now have been due for release upon completing 6 years 7 months, with remission of 1/3 of the sentence.
Conclusion
6. Accordingly, while quashing the conviction for the offence of rape contrary to section 3 (1) (3) of the Sexual Offences Act for the reason that the plea of guilty was not unequivocal, and setting aside the sentence therefor, the Court does not order a retrial because the appellant has served the 2/3of the minimum sentence of the offence. As explained in Arissol v. R (1957) EA 447, it is unusual for a first offender to be sentenced to the maximum penalty for a given offence, and the imprisonment for 20 years was clearly excessive.
Orders
7. There shall, therefore, be an order for the release of the appellant from custody forthwith, unless he is otherwise lawfully held.
Order accordingly.
DATED AND DELIVERED THIS 10TH DAY OF APRIL 2019
EDWARD M. MURIITHI
JUDGE
Appearances:
Appellant in person.
Ms. Macharia, Ass. DPP for the Respondent.