[1993] KEHC 143 (KLR)
The court found that the convictions were unsafe because the plea of guilty was not unequivocal and the proper procedure for recording pleas was not followed. The charge was not properly explained to each appellant, their individual responses were not recorded, and the facts were not set out by the prosecutor. The...
Source-derived case information.
- Citation
- [1993] KEHC 143 (KLR)
- Parties
- Appellant: Fredrick Ouma Koko; Appellant: Julius Mukabi Okune; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 651 & 652 of 1993
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Plea Taking Procedure, Malicious Damage to Property, Conviction Safety, Recording of Plea, Sentence Quashing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Ouma Koko
Appellant
Julius Mukabi Okune
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea of guilty entered by the appellants was unequivocal and properly recorded.
- 2 Whether the conviction and sentence based on the plea were safe and lawful.
Ratio Decidendi
The court found that the convictions were unsafe because the plea of guilty was not unequivocal and the proper procedure for recording pleas was not followed. The charge was not properly explained to each appellant, their individual responses were not recorded, and the facts were not set out by the prosecutor. The mitigation was also not separately recorded for each appellant. These procedural lapses contravened section 207 of the Criminal Procedure Code and established case law, rendering the convictions and sentences nullities. The appeals were allowed, convictions quashed, sentences set aside, and the appellants ordered to be released and any fines refunded.
Court Disposition
appeal_allowed
Orders
- The appeals are allowed.
- The convictions of both appellants are quashed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CRIMINAL APPEALS NOS 651 & 652 OF 1993 (CONSOLIDATED)
FREDRICK OUMA KOKO
JULIUS MUKABI OKUNE ……....……..APPELLANTS
VERSUS
REPUBLIC……………………………RESPONDENT
(From Original Conviction and Sentence in Criminal Case No 3824
of 1993 of the ChiefMagistrate’s Court at Nairobi,
BA Achieng, Esq)
JUDGMENT
These appeals have been consolidated.
The 1st appellant, Fredrick Ouma Koko (original A1) and the 2nd appellant, Julius Mukabi Okune (original A2) were convicted in Court on plea of guilty by the learned Chief Magistrate of the offence of malicious damage to property contrary to section 330 (1) of the Penal Code. Upon their conviction, each of them was sentenced to a fine of Shs 5000/- or in default to some 6 months imprisonment. The sentence was suspended to enable them to raise the amount of the fine but before the expiry of the date given, their counsel lodged to present appeals. Their appeals to this Court are against conviction and sentence.
The main point taken up on appeal is that the conviction of each of the appellants were defective and it was based on a plea which did not amount to unequivocal plea of guilty to the charge. It is plain from the record that when the charge was read or explained to each of the appellants, his (their) reply thereto was not recorded. The learned Chief Magistrate is on record as having sincerely recorded a plea of guilty without putting down on record whether each of the accused might have stated in answer to the charge. This was a serious omission which renders the whole plea nullity and is contrary to the provisions of section 207 of the Criminal Procedure Code (cap 75, Laws of Kenya). Moreover, the facts of the case were not set out by the prosecutor which merely treated such facts “as per charge sheet”. The record here follows shows that both appellants stated – “lump sum” that the facts were correct. I use the lump sum in this regard because whether each of the appellant is alleged to have stated a reply to the alleged facts shown as per charge sheet is recorded in one sentence against each of them to show that such facts were correct. This is again wrong. The reply of each of the appellants (accused persons) ought to have been separately recorded. A stanner mistake is repeated in recording their mitigation. Clearly the learned Chief Magistrate demonstrated that he was in such a hurry that he did not bother to comply with the procedure laid down by the lower court of appeal for Eastern province in the case of Adan –v- R[1973] KLR 143 EA 445 see also Lusitu –v- R[1977] KLR 143 learned Asst DPP Mr Etyang conceded to the appeals and I think rightly so.
I am satisfied that the conviction of each of the appellant was unsafe and was based on a plea which did not amount to unequivocal plea of guilty to the charge. Consequently, I allow these appeals, I quash the conviction of each of the appellants and set aside the sentence that was imposed on each of them. I order that each of them shall be set free and be released forthwith unless otherwise lawfully held. If any fines were paid I order that the same shall be refunded. I have so ordered.
Dated and Delivered at Nairobi this 21st Day of June, 1993
S.O. OGUK
…………..
JUDGE