[2022] KEHC 15056 (KLR)

Director of Public Prosecutions v Macharia (Criminal Revision 61 of 2022) [2022] KEHC 15056 (KLR) (10 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15056 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Criminal Revision 61 of 2022

CM Kariuki, J

November 10, 2022

Between

The Director of Public Prosecutions

Applicant

and

James Macharia

Respondent

Ruling

1. By Notice of Motion dated October 12, 2022. The Applicant seeks the orders.

2. This Honourable Court is pleased to certify the application as urgent and heard ex-parte in the first instance and on a priority basis.

3. That this Honourable Court is pleased to call for and examine the record of proceedings in Nyahururu Chief Magistrates Court case No. 1294 of 2022-Republic versus James Macharia for purposes of satisfying itself as to the correctness legality and propriety of the said court’s finding and ruling made on October 7, 2022.

4. That the Court be pleased to review, vary, reverse and alter the orders of the learned Magistrate in E1294/2022- Republic versus James Macharia by setting aside the proceedings of October 7, 2022 together with the orders of the court and order that the matter is returned to the Chief Magistrate’s Court for a new hearing.

5. That the court be pleased to issue any other orders it deems fit.

6. The same is supported by the grounds on the face of the application namely. It is deponed that the learned Magistrate made a procedural error by allowing the accused to proceed with a change of plea on an offence that the prosecution had already indicated to have been erroneous and had already amended the charge sheet.

7. The procedure followed by the Learned Magistrate denied the complainant and his family an opportunity to be heard contrary to Articles 48 and 50 (1) of the Constitution of Kenya, 2010. The Learned Magistrate further undermined the powers of the Director of Public Prosecutions to exercise state powers of Prosecution as provided under Article 157 of the Constitution of Kenya, 2010, together with the office of the Director of Public Prosecutions Act, 2013.

8. The Learned Magistrate erred in Law by imposing a fine of Kshs. 20,000/ on the accused person, a fine not provided by the operative provision of Law. Section 162 (a) (i) of the Penal Code provides. Any person who ­-:has carnal knowledge of any person against the order of nature, or has carnal knowledge of an animal, or permits a male person to have carnal knowledge of them against the order of nature is guilty of a felony and is liable to imprisonment for fourteen years:a.Provided that, in the case of an offence under paragraph (a), - the offender shall be liable to imprisonment for twenty-one years If the crime was committed without the consent of the person who was carnally known; orb.The offence was committed with that person’s consent. Still, the permission was obtained by force, using threats or intimidation of some kind, by fear of bodily harm, or using false representations as to the nature of the act.”1. Thatthe Learned Magistrate further erred in law by failing to impose the prescribed sentence of Twenty- (21) years imprisonment as provided by the Penal Code (section 162 (a) (i), thereby undermining the gravity of the offence and its long-term impact on the physical and emotional wellbeing of the victim and his family.2. The application is supported by the affidavit of Peter Gitimu, sworn on October 12, 2022, which reiterates the grounds above.

11. That on October 8, 2022, Respondent Collins Maina was arraigned at the Nyahururu Chief Magistrate Court (Court1) vide Court File No. E1294/2022, where he pleaded not guilty to the charge of unnatural offense contrary to section 162( c) of the Penal Code ( annexed PG-1)

12. That the matter was then allocated to Court 5, and a hearing date was set for the 28th of September 2022.

13. On September 28, 2022, the matter came for a hearing, where I realized that the charge preferred ought to have been Defilement contrary to section 8 (3) of the Sexual Offences Act. I then sought an adjournment to amend the charge sheet to the proper offense.

14. On October 6, 2022, the amended charge sheet was availed in court for plea-taking. However, the accused person failed to show up to court; after that, the court issued a warrant for his arrest, and a further mention date was fixed. The amended charge sheet was subsequently retained in the police file. (Annexed PG -2)

15. On September 7, 2022, the Accused Respondent appeared before court No. 5, changed his plea to guilty, and was fined Kshs. 20,000/= for the offense contrary to the provisions of section 162(c ) of the penal code.

16. That contrary to the initial purpose of the mention, the accused did not take a plea on the amended charge sheet and was allowed by the court to proceed with a change of request on an erroneous charge.

17. Although the charges were read correctly to the accused who pleaded guilty the facts were not subsequently read to him as required. The conviction on a plea guilty was solely based on a recorded assumption by the court that:i.“Facts as per charge sheet) “

18. The court also denied the prosecution an opportunity to produce the medical examination form, Post- rape (PRC) form, and other evidence material to the case.

19. The plea-taking procedure adopted did not fully comply with the guidelines in the case of Adan v Republic [1973] EA 445 to the effect:

20. “ The charge and all the essential ingredients of the offense should be explained to the accused in his language or in a language he understands;

21. The accused’s own words should be recorded, and if they are in admission, a plea of guilty should be recorded.

22. The prosecution should then immediately state the facts, and the accused should be allowed to dispute or explain the facts or to add any relevant facts.

23. If the accused does not agree with the facts or raises any question of his guilt, his reply must be recorded, and a change of plea entered;

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

25. That if allowed to stand, the decision of the Learned Magistrate undermines the seriousness of such offenses and the impact which the offence will have on the victim’s physical and psychological well-being. The decision flies in the face of the fair administration of justice and would serve as a bad precedent in law, with the effect of misleading other courts.

26. Determination 27. Article 165(6) of the Constitution empowers the High Court to exercise supervisory jurisdiction over subordinate courts. The Criminal Procedure Code is the Statute that expounds on this jurisdiction. Section 362 of the Criminal Procedure provides:-“The High Court may call for and examine the record of any criminal proceedings before any subordinate court to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any subordinate court.”

28. Section 364 of the same code empowers the High court to exercise its revisionary powers conferred to it as a court of appeal by Sections 354, 357, and 358 and may enhance a sentence.

29. In my view, the Constitution clearly states that a person can only apply for a review of an order or sentence in a criminal case to a higher court. Section 362 of the Criminal Procedure code limits the revisionary powers of the High Court to the demands of the subordinate court. This means this court cannot stretch its wings further than the law permits.

30. In the instant matter, this court is limited to examining the record of any criminal proceedings before any subordinate court to satisfy itself as to the correctness, legality, or propriety of any finding, sentence, or order recorded or passed and as to the regularity of any proceedings of any subordinate court. That on October 8, 2022, Respondent Collins Maina was arraigned at the Nyahururu Chief Magistrate Court (Court1) vide Court File No. E1294/2022, where he pleaded not guilty to the charge of unnatural offense contrary to section 162( c) of the Penal Code ( annexed PG-1)

31. That the matter was then allocated to Court 5, and a hearing date was set for the 28th of September, 2022. On September 28, 2022, the case came for a hearing where ODPP realized that the charge preferred ought to have been Defilement contrary to section 8 (3) of the Sexual Offences Act. The applicant then sought an adjournment to amend the charge sheet to the proper offense.

32. On October 6, 2022, the amended charge sheet was availed in court for plea-taking. However, the accused person failed to show up to court; after that, the court issued a warrant for his arrest, and a further mention date was fixed. The amended charge sheet was subsequently retained in the police file. (Annexed PG -2)

33. That on September 7, 2022, the Accused Respondent appeared before court No. 5, changed his plea to guilty, and was fined Kshs. 20,000/= for the offense contrary to the provisions of section 162(c) of the penal code.

34. That contrary to the initial purpose of the mention, the accused did not take a plea on the amended charge sheet and was allowed by the court to proceed with a change of request on an erroneous charge.

35. Although the charges were read correctly to the accused, who pleaded guilty, facts were not subsequently read to him as required. The conviction on a plea guilty was solely based on a recorded assumption by the court that: “Facts as per charge sheet) “

36. The court also denied the prosecution an opportunity to produce the Medical examination form, Post- rape (PRC) form, among other evidence material to the case.

37. The plea-taking procedure adopted needed to fully comply with the guidelines in the case of Adan v Republic [1973] EA 445 to the effect:“ The charge and all the essential ingredients of the offense should be explained to the accused in his language or in a language he understands;

38. The accused’s own words should be recorded, and if they are in admission, a plea of guilty should be recorded.

39. The prosecution should then immediately state the facts, and the accused should be allowed to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the points or raises any question of his guilt, his reply must be recorded, and a change of plea entered;

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

41. That if allowed to stand, the decision of the Learned Magistrate undermines the seriousness of such offenses and the impact the offence will have on the victim’s physical and psychological well-being. The decision flies in the face of the fair administration of justice and would serve as a bad precedent in law, with the effect of misleading other courts.

42. Thus, the court makes the orders;i. Orders of review to vary, reverse, and alter the orders of the learned Magistrate in E1294/2022- Republic versus James Macharia is at this moment issued, setting aside the proceedings of October 7, 2022 together with the orders of the court and order that the matter be returned to the Chief Magistrate’s Court for a new hearing.ii. The fine if paid to be refunded back to the accused.

DATED, SIGNED, AND DELIVERED AT NYAHURURU THIS 10TH DAY OF NOVEMBER 2022. .............................................CHARLES KARIUKIJUDGE