[2022] KEHC 1800 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

CRIMINAL APPEAL NO.E025 OF 2021

EVANS KADIMA................................................................................................APPELLANT

VERSUS

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

J U D G M E N T

[1] The appellant, Evans Kadima Shiundu, was arraigned before the Chief Magistrate at Busia for the offences of child trafficking, contrary to S.3 of the Counter Trafficking in Persons Act No.8 of 2010 and economic exploitation, contrary to S.10 (1) (5) (a) read with S.20 of the Children Act No.8 of 2001.

[2]In the first count, it was alleged that on diverse dates between 8th September 2021 and 11th September 2021 at about 1500hrs within Namanga village, Matungu Kakamega County with others not before the court, the appellant recruited a minor aged 14 years namely TEW Alias TEN by transferring her to the home of one Violet Juma at Nasianda village and later to Funyula township, Busia County where the minor was employed as a maid by Nancy Juma Machoge.

[3]In the second count, it was alleged that on the same dates and time in Funyula township Samia within Busia County, with others not before court the appellant employed a minor namely TEW, aged fourteen (14) years and a grade four (4) pupil at [Particulars Withheld] primary school to work as a maid thereby violating her Constitutional right to education.

[4]After pleading guilty to both counts and accepting the correctness of the supporting facts, the appellant was found guilty on own plea and sentenced to thirty (30) years imprisonment in default a fine of thirty (30) million for count one and to twelve (12) months (sic) in default ksh.50,000/=. The sentences were to run consecutively.

[5]Being dissatisfied with the sentence, the appellant preferred this appeal on the basis of the grounds set out in the petition of appeal dated 14th October 2021. The appeal was heard by way of written submissions which were filed by the appellant on 16th February 2022 and by the respondent on 23rd February 2022.

[6]Upon due consideration of the appeal on the basis of the supporting grounds and the rival submissions, and having carefully perused the trial court’s record both in the primary and secondary form, this court holds the view that the plea taking process in which the appellant pleaded guilty to the charges and was accordingly sentenced was manifestly flawed on account of the trial court’s failure to enter conviction on both counts.

[7]After accepting the facts as being correct, the trial court ought to have recorded that the appellant was found guilty on own plea and convicted accordingly. Instead, the trial court merely recorded “POGE” meaning plea of guilty entered. This was not followed as it should have with a conviction followed by the sentence after mitigation by the accused.

[8]It would therefore follow that the appellant was sentenced without being first and foremost convicted.

A conviction provides the basis or foundation of the sentence and without it the sentence must invariably crumble along with the plea taking process conducted by the trial court which effectively rendered the appellant’s plea of guilty equivocal rather than unequivocal.

[9]Be that it may, the correct manner of recording a plea of guilty and the steps to be followed by the court were laid down in the “locus classicus” case of Adan Vs Republic [1973] EA 445, where the applicable legal principles were laid down in the following terms:-

“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 this 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 of course be recorded.”

[10]Clearly, this set procedure was not strictly applied by the trial court in this case and for that reason only this appeal must succeed even though the appellant in his grounds of appeal did not substantially challenge the plea taking process, neither did the respondent see anything wrong with the plea taking process.

[11]All in all, the failure by the trial court to follow the procedural guidelines during plea taking rendered the whole process on trial unsatisfactory. In that regard, it would be just and fair for a re-trial order to issue even if only, in the interest of justice and without prejudice to the appellant.

In Muiruri Vs. Rep (2003) KLR 552, it was held “inter alia” that:-

“(1) Generally whether a retrial should be ordered or not must depend on the circumstances of the case.

(2) 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 arrangement of the appellant; whether the mistakes leading to the quashing of the conviction were entirely the prosecution making or not.”

[12]Perhaps it should be mentioned herein that in plea taking the court is governed by the provisions of S.207of the Criminal Procedure Codewhich if not followed renders the whole process fatally defective. It is worthy noting that the provision does not place a duty upon the court to explain the penalty imposed on the offence charged. The appellant could not therefore be heard to complain that the trial court did not warn him of the consequences of pleading guilty to the charges facing him.

[13]In sum, this appeal is allowed with orders that the appellant shall be re-tried on the same charges before a different magistrate of competent jurisdiction.

Ordered accordingly.

J.R. KARANJAH

J U D G E

[DATED & DELIVERED THIS 3RD DAY OF MARCH 2022]