[2022] KEHC 1488 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYAHURURU

CRIMINAL APPEAL NO. E013 OF 2020

(Being an Appeal from the Conviction and Sentence of Hon V. Kiplagat

Resident MagistrateNyahururu passed on 13/04/2021 in Nyahururu

ChiefMagistrates Courtin Criminal Case No. E748 of 2021-

Republic vs Esther Wanjiku Karara)

ESTHER WANJIKU KARARA....................................................................................APPELLANT

-VERSUS-

REPUBLIC.................................................................................................................RESPONDENT

JUDGEMENT

1. The Appellant herein was charged with the offence of grievous harm contrary to Section 234 of the Penal Code. Particulars being that on 14th day of March 2021 at Tutu Ngomongo Area in Subukia Sub-County within Nakuru County, the accused unlawfully did grievous harm to Michael Mutua Mwamba.

2. The Appellant was convicted and sentenced to 5 years on her own plea of guilty. The Appellant being dissatisfied with the conviction and sentence meted out by the trial court instituted the instant appeal on grounds that the plea of guilty entered was not unequivocal and that the sentence is harsh and excessive.

APPELLANT’S SUBMISSIONS

3. The Appellant argued that the plea of guilty entered by the trial court on 29/3/2021 was not unequivocal for the following reasons:

i. Whilst the record indicates the language used to read the charge, it does not indicate the language used to read out the facts of the case to the Appellant.

ii. From the record, it is not possible to tell with certainty the language used by the Appellant to plead to the facts of the case as read out to her.

iii. The trial court did not warn the Appellant of the consequences of pleading guilty nor the seriousness and magnitude of the offence she was facing prior to recording a plea of guilty

4. Reliance was placed on Section 207 of the Criminal Procedure Code, Article 50 (2) of the Constitution, Adan versus Republic [1973] E.A. 445, Elijah Njihia Wakianda v Republic [2016] eKLR.

5. The Appellant also asserted that the sentence meted out was harsh and excessive. It was argued that as a general rule the trial court should actor the presentence probation officers report and victim impact statement in particular were the overall nature of the offence can occasion restorative justice to take effect as a way of reconciliating the offender and the victim. Reliance was placed upon Zachary Nganga Ngugi v Republic [2016] eKLR.

6. Lastly, the Appellant urged the court to find that the Appellant’s harsh, excessive and unjust conviction and sentence was grounded on unequivocal null plea and reiterated that it is in the interest of justice that the said conviction and sentence be quashed.

7. Respondent’s Submissions not on record as by the time of drafting this judgement.

ANALYSIS AND DETERMINATION

8. Having perused the Court record and considered submissions by parties herein, I and find the following as the issues for determination: -

Whether the plea was unequivocal

Whether the sentence imposed was harsh and excessive

9. The Appellant herein was charged and convicted on his own plea of guilty of the offence of Grievous Harm Contrary Section 234 of the Penal Code which states

“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”

10. Since the equivocality of the plea is in question, I will reproduce, below, what appears in the Court record:

29/3/21

Magistrate: Hon V Kiplagat R.M

Prosecutor: Fridah

Court clerk: Henry

Accused: Present

The substance of the charges and every element thereof has been stated to the court to the accused person in the language that she understands who being asked whether she admits or deny the truth of the charges replies;

Accused: Ni Kweli. Plea of guilty entered.

Mention on 13/4/2021 for facts

HON V.KIPLAGAT

RESIDENT MAGISTRATE

29/3/21

13/4/2021

Before V.Kiplagat R.M

Prosecutor: Friday

Court Assistant: Henry

Accused: Present

Court Prosecutor: the facts are ready

Charges read to accused in Kiswahili and replies

Count 1: Ni Kweli. Plea of guilty entered.

Court prosecutor- on 14/3/21 at midnight, the complainant Michael Mutua who is a resident of Tetu returned home from a nearby center where he had gone to take alcohol. On arrival at home, the accused opened the door. They picked a quarrel over 1500/-. The complainant had been given money to look for a tractor to plough. He could not explain. At 1. 00 am, the complainant slept and accused picked a panga and started cutting him on the head and arms. She left him lying on a pool of blood and surrendered herself to the police. The police visited the scene and took the complainant to Subukia sub-county hospital where he was referred to Nakuru provincial hospital where he was admitted for several days since he was in critical condition. At the cause of instigation, it was established that the panga that had been used to cut the complainant had been dropped in a pit latrine and could not be retrieved. The complainant was in hospital until 22/3/21 where he was discharged. Discharge summary produced as Pexh 1.

P3 form Pexh 2.

It shows degree of injury as grievous harm. The accused was charged.

That is all.

Accused: The facts are correct.

Court: the accused convicted on her own plea of guilty.

MITIGATION BEFORE SENTENCING

I pray for forgiveness. I was annoyed. I will not repeat again.

That is all.

Court prosecutor: no records.

COURT;

The offender is remorseful with no previous records. However, the offence is heinous and the complainant was lucky he did not die. There is need for severe sentence to be passed against the offender so that her character may be reformed.

I hereby sentence the offender to serve five (5) years imprisonment without option of fine.

Right of appeal within 14 days.

HON V. KIPLAGAT

RESIDENT MAGISTRATE

13/4/21

11. Section 207 of the Criminal Procedure Codeprovides for the procedure to be followed when the accused is called upon to plead in criminal trials as follows:

“207. (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.

(5) If the accused pleads -

that he has been previously convicted or acquitted on the same facts of the same offence; orthat he has obtained the president’s pardon for his offence, the court shall first try whether the plea is true or not, and if the court holds that the evidence adduced in support of the plea does not sustain it, or if it finds that the plea is false, the accused shall be required to plead to the charge.”

12. In John Muendo M. v Republic [2013] eKLR, the court had this to say;

“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.”

13. Further the Court of Appeal in the case ofObedi Kilonzo Kevevo v Republic [2015] eKLR stated as follows in relation to plea taking:

“The importance of statement of facts is that it enables the trial court to satisfy itself that the plea of guilty was really unequivocal and that the accused understood the facts to which he was pleading guilty and has no defence. The facts as read to the accused must disclose the offence. A plea is considered unequivocal if the charge is read to an accused person and he pleads guilty, thereafter, the facts are narrated to the accused person and he/she is once more asked to respond to the facts. It is important that both the statement of offence as contained in the charge sheet as well the facts as narrated by the prosecution must each disclose an offence. Otherwise, the plea is not unequivocal.”

14. As quoted by the Appellant’s counsel, the law and practice related to the taking and recording of pleas of guilty was stated in the following paragraph in the decision in Adan v Republic(1973) EA 445at 446:

“When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilty, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused's reply must, off course, be recorded.”

15. In the present matter, the Appellant was charged with the offence of grievous harm contrary to Section 234 of the Penal Code, which states as follows:

“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”

16. The Appellant argued that the plea of guilty entered by the trial court on 29/3/2021 was not unequivocal for the following reasons:

“Whilst the record indicates the language used to read the charge, it does not indicate the language used to read out the facts of the case to the Appellant.

From the record, it is not possible to tell with certainty the language used by the Appellant to plead to the facts of the case as read out to her.

The trial court did not warn the Appellant of the consequences of pleading guilty nor the seriousness and magnitude of the offence she was facing prior to recording a plea of guilty

From the aforementioned, the Appellant contended that the trial court did not indicate the language used to read out the facts of the case to the Appellant. He reiterated that it is not possible to tell with certainty the language used by the Appellant to plead to the facts of the case as read out to her. For purposes of interrogating the same, I will reproduce, below, what appears in the court record on the date the facts of the charge were read out to the accused:

13/4/2021

Before V.Kiplagat R.M

Prosecutor: Friday

Court Assistant: Henry

Accused: Present

Court Prosecutor: the facts are ready

Charges read to accused in Kiswahili and replies

Count 1: Ni Kweli. Plea of guilty entered.

Court prosecutor- on 14/3/21 at midnight, the complainant Michael Mutua who is a resident of Tetu returned home from a nearby center where he had gone to take alcohol. On arrival at home, the accused opened the door. They picked a quarrel over 1500/-. The complainant had been given money to look for a tractor to plough. He could not explain. At 1. 00 am, the complainant slept and accused picked a panga and started cutting him on the head and arms. She left him lying on a pool of blood and surrendered herself to the police. The police visited the scene and took the complainant to Subukia sub-county hospital where he was referred to Nakuru provincial hospital where he was admitted for several days since he was in critical condition. At the cause of investigation, it was established that the panga that had been used to cut the complainant had been dropped in a pit latrine and could not be retrieved. The complainant was in hospital until 22/3/21 where he was discharged. Discharge summary produced as Pexh 1.

P3 form Pexh 2.

It shows degree of injury as grievous harm. The accused was charged.

That is all.

Accused: The facts are correct.

Court: the accused convicted on her own plea of guilty.

17. In Elijah Njihia Wakianda v Republic [2016] eKLR, the court considered the issue as to failure of the trial court record to indicate the language used to read and explain the charge to the Appellant. The Court held as thus:

“The beginning point of ensuring that the accused person has entered into a free and conscious plea of guilty is being satisfied that he understands the proceedings and that he in particular understands the charge that is facing him. Indeed, the court taking the plea is required to read and explain to the accused the charge and all the ingredients in the accused person's language or a language he understands. In the instant case, the record reads thus;

“Court: The substance of the charge(s) and every element thereof has been stated by the court to the accused in a language that he understands who being asked whether he admits or denies the truth of the charge replies in Kiswahili: - “It is true.”

With respect, we find this disturbing. It seems to us that this is part of a template used by courts at plea taking. That is why it speaks of “charge(s)” when there was a single charge and the rather odd “in a language he understands”, when it is more normal and logical to simply state the language used. This smacks of a mere going through the motions, a recital of ritual. While that may not much matter when the plea entered is one of not guilty followed by a trial with all its attendant safeguards, it assumes a critical dimension when the plea is one of guilty and leads to conviction

We think that it is good practice for the specific language used to state the elements of the charge be specifically stated. That should be established by specifically asking the accused what language he understands, and recording his answer before either using the language he mentions or ensuring a translator is present to convey the proceedings to him in the chosen language………

18. From the foregoing, it is clear that the court record indicated that the charges were read to accused in Kiswahili and replies “Ni Kweli”in accordance with the guidelines set in Adan v Republic [1973] EA 445which stipulated that 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. I have noted that the facts of the case were not read on the same day, however, on the date they were read i.e. 13/4/2021, it is my considered view that the trial court followed the procedure on plea taking as set out in the aforementioned case.

19. For a plea to be considered unequivocal, it should be clear, indicating no ambiguity and not open to any interpretation. The court in recording the same should at no expense sacrifice specificity.

20. In Elijah Njihia Wakandia v Republic [2016] eKLR,the court held that:

“We think that it is good practice for the specific language used to state the elements of the charge be specifically stated. That should be established by specifically asking the accused what language he understands, and recording his answer before either using the language he mentions or ensuring a translator is present to convey the proceedings to him in the chosen language. 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.”

21. It is my considered view that the record indicated in clear and unambiguous terms the language that the Appellant understood i.e. Kiswahili and therefore the Appellant’s allegations have not been substantiated.

22. Furthermore, the Appellant contended that the trial court did not warn the Appellant of the consequences of pleading guilty nor the seriousness and magnitude of the offence she was facing prior to recording a plea of guilty. The explanation of the substance and elements of the charge also includes informing the accused of the consequences of pleading guilty; This was the position held in the case of Elijah Njihia Wakandia v Republic (supra) and Kennedy Ndiwa Boit v Republic [2002] eKLR.

23. In Elijah Njihia Wakianda case(supra) the court held as thus: -

“……..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…”

24. Similarly, in Omar Guyo Omar v Republic [2021] eKLRthe court held that:

“It is not enough for Courts to simply enter plea of guilty. There are a series of statements to interrogate to ascertain the truth from the record. There are certain matters that are suspect and disregarded by the trial Court. The issue of the right to interpretation and the language Appellant confirmed the proceedings could be conducted to his advantage has not been indicated. There is no evidence that the learned trial magistrate informed the Appellant of the nature of the charges and the consequences of pleading guilty.”

25. Subsequently, the offence facing the Appellant was a serious one carrying a hefty sentence of possible life imprisonment and thus ordinarily the court ought to have made sure that the Appellant was aware of the gravity of the offence facing her and warned her of the consequences of pleading guilty. This duty exists both for capital offences and also other serious offences such as the offence herein which carries a long sentence. Apart from understanding the ingredients of the offence in which she was charged with at all stages of plea taking, the trial court owed the Appellant the duty to inform her the severity of the sentence she faces should she choose to plead guilty in the interests of her rights to affair trial. (See Fidel Malecha Weluchi v Republic [2019] eKLR).

26. However, it is this court finding that, the plea of guilty is unequivocal, and the conviction resulting therefrom must stand as sentence was not a long one and thus not amenable to setting aside. Notably, criminal justice aims to uphold the rights of the accused but also the rights of the victims. The victim of the offence will benefit from a fair trial for she was accorded justice therefore it is my considered view that this case is not fit for a retrial. In Muiruri v Republic [2003] KLR 552as referenced in David Ndwiga Nyaga v Republic [2021] eKLR, the Court held that: -

“It [retrial] will only be made where the interests of justice require it and if it is unlikely to cause injustice to the Appellant. Some factors to consider would include, but are not limited to, illegalities or defects in the original trial. (See Zedekiah Ojuondo Manyala v Republic (Criminal Appeal No. 57 of 1980); the length of time which has elapsed since the arrest and arraignment of the Appellant; whether the mistakes leading to the quashing of the conviction were entirely of the prosecution’s making or the courts.”

27. In conclusion, I find that this;

(i) appeal has no merit and is hereby dismissed. The conviction is hereby upheld and sentence confirmed.

DATED AND SIGNED AT NYAHURURU THIS 10TH DAY OF MARCH, 2022.

......................................

CHARLES KARIUKI

JUDGE