[2010] KEHC 1559 (KLR)
The court found that the plea of guilty was properly entered, the language of the proceedings was clearly indicated and understood by the appellant, and the requirements for a valid plea were met as per established case law. The court held that, under Section 348 of the Criminal Procedure Code, an appeal against...
Source-derived case information.
- Citation
- [2010] KEHC 1559 (KLR)
- Parties
- Appellant: Godfrey Matsitsi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 103 of 2009
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- appeal dismissed
- Legal Topics
- Defilement, Plea of Guilty, Sentencing Principles, Language of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Godfrey Matsitsi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the trial court failed to ascertain the language understood by the appellant.
- 2 Whether the appellant's constitutional rights were violated during the plea and conviction process.
- 3 Whether the sentence imposed was excessive or illegal.
Ratio Decidendi
The court found that the plea of guilty was properly entered, the language of the proceedings was clearly indicated and understood by the appellant, and the requirements for a valid plea were met as per established case law. The court held that, under Section 348 of the Criminal Procedure Code, an appeal against conviction on a guilty plea is not permitted except as to the legality or extent of sentence. The sentence of 30 years imprisonment, though above the minimum, was justified by the aggravating circumstances and did not amount to an illegality. The appeal against both conviction and sentence was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal against conviction is dismissed.
- The appeal against sentence is dismissed.
Full Case Text
Judgment text and source record
58 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Criminal Appeal 103 of 2009
GODFREYMATSITSI……………………………………..APPEALLANT
=VERSUS=
REPUBLIC………………………………………………….RESPONDENT
(An Appeal from the conviction and sentence of A. Alego, Esq. Senior Resident Magistrate at Eldoret delivered on 24th June 2009 in CMCC Case No. 3846 of 2009)
JUDGMENT
I.Background
1. The Original Accused and now Appeallant in this Appeal was charged in the Subordinate Court with the offence ofDefilementContrary to Section 3(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. Particulars of OffenceOn the 21stday of June 2009 in Lugari District within Western Province unlawfully and intentionally caused penetration with his genital Organ … of a child namely R.M.M aged 14 years old.
2. An alternative charge was also preferred beingIndecent ActContrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
Particulars of Offence
On the 21stday of June 2009 in Lugari District within Western province unlawfully and intentionally indecently assaulted a child (a girl) namely R.M.M aged 14 years by touching her …
3. The Appeallant appeared before the Trial Magistrate (SRM) on the 24th June 2009. The Interpretation in Court was English/Kiswahili. The Charge was read on count one and the Appeallant pleaded guilty. The Alternative Count was therefore
not considered on this plea on Count No.1.
4. A Plea of guilty being entered, the facts were narrated to the Appeallant of how on21stJune 2009he gave a lift to the minor, a student at a Primary School in Standard 6. The Appeallant diverted his bike into a forest where he forced the minor to undress and defiled her.It was her screams that attracted members of public who apprehended the Appeallant.Medical evidence indicated the minor was defiled.Although she was found to be HIV negative, she had Sexually Transmitted Disease (STD) found on her.
5. The Appeallant in reply to the facts read to him in details stated “ It is true, I slept with her”. In mitigation he stated he was alone with his siblings” The Trial Magistrate gave a Sentence being a deterrent Sentence and sentenced the Appeallant to 30 years imprisonment on the24th June 2009.
6. Being aggrieved with both the Conviction and Sentence the Appeallant filed an Appeal to this High Court on the 8th July 2009 through his Advocate. This Appeal was admitted for hearing (Mwilu J) on the 9th march 2010.
II.Appeal Procedure
7. On the day called out, the Advocate for Appeallant was absent. The said Advocate was on strike.
8. The Court proceeded with this Appeal as permitted by law under Section 354 of the Criminal Procedure Code where it is not necessary for the parties, the Advocate and or Appeallant to attend Court.
III.Appeal
9. The Petition of Appeal being
(a)The trial Magistrate erred in law and fact in failing to ascertain the language understood by the Appeallant,
(b)In failing to inquire into the abuse of the Appeallant’s Constitutional rights that made the entire proceedings null and void,
(c)… in meting out a sentence that was excessive in the circumstances,
(d)… the medical evidence … was inconclusive and required corroboration,
(e)…Failing to warn the Appeallant on the consequences of pleading guilty to the charge,
(f)… disregarded procedure as to conviction, mitigation and sentence.
10. In reply to this Petition the Advocate for the Republic argued that the language used was clearly indicated English/Kiswahili translation. The Appeallant participated to the proceedings and made admission of “it is true” and further stated
“ I slept with her”This in itself indicated that he understood the language. Case law
Paul Nakua Eyan
=vrs=
Republic
Cr.A. 241/2006
(Omolo,Githinji, Aluoch JJA) refers.
11. As to the sentence the term 20 years imprisonment was a minimum sentence met.
IV.Opinion
12. A plea of guilty had been entered. The Principal found in the case law of Adan vrs Republic (1973) E.A 445 was accordingly met in the procedure of taking down evidence on a plea of guilty.
13. Under Section 348 of the Criminal Procedure Code it states that
“ No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate Court, except as to the extent or legality of the sentence”.
14. To this end, the appeal against conviction cannot stand to be heard where a plea of guilty has been entered. The issue of the language does not arise, as from the proceedings, the Court indicated the language used. The response from the Appeallant was understood. At the stage of the Plea, Medical Evidence, documentary, was produced to Court.
15. The appeal on conviction is dismissed.
16. As to the Sentence of 30 years imprisonment, the trial Magistrate took into consideration that the victim a minor aged 14 years old was dehumanized and unable to consent to the sexual offences. The aspect of “deterrence” was the basis for the sentence of 30 years imprisonment. I do not intend to interfere with sentence as it does not amount to an illegality in any way. The appeal against sentence is also rejected and dismissed.
DATED THIS 15TH DAY OF JULY 2010ELDORET.
M.A ANG’AWA
JUDGE
17. Right of appeal within 14 days.
Section 379 (3) Criminal Procedure Code.
M.A. ANG’AWA
JUDGE.
Advocate
(i)J.K. Chirchi, Senior State Counsel instructed by the office of the Attorney General
for the State/Respondent-Present
(ii)Ms Buluma Advocate instructed by the firm of M/s Buluma and Co. Advocate for the
Appeallant- Absent - advocates being on strike
(iii)Godfrey Matsitsi (Appeallant in person)-Present