[2022] KEHC 16139 (KLR)

Haro v Republic (Criminal Appeal E010 of 2022) [2022] KEHC 16139 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16139 (KLR)

Republic of Kenya

In the High Court at Marsabit

Criminal Appeal E010 of 2022

JN Njagi, J

December 1, 2022

Between

Qalicha Haro

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence by Hon E K Too, PM, in Moyale PM`s Court Sexual Offence Case No 9 of 2020 delivered on 295/2020)

Judgment

1. The appellant was convicted in count 1 on his own plea of guilty for the offence of attempted defilement contrary to section 9(1)(2) of the Sexual Offences Act No 3 of 2006 and was sentenced to serve 10 years imprisonment. He was also convicted in count 2 of the offence of entering Kenya without a valid pass or permit contrary to section 53 (1)(j)(2) of the Kenya Citizenship and Immigration Act and was sentenced to serve three months imprisonment with further orders that he be repatriated to Ethiopia after completion of the sentence. The appellant was aggrieved by the conviction and the sentence and filed the instant appeal.

2. The grounds of appeal are that the appellant pleaded not guilty to the charge; that he was made to undergo the trial while unwell; that he was not given a chance to understand the court procedure and that the trial magistrate failed to observe that the plea was equivocal.

3. The appeal was canvassed by way of written submissions. The appellant submitted that the plea was not unequivocal. That the charge, the particulars thereof and the facts were read in a language that he was not well versed with. That the trial magistrate must have doctored the plea wherein he entered a plea of guilty. That he was unwell when the plea was taken and he was not given time to understand the charge. That he is a layman and being his first time to appear in court he failed to challenge the plea.

4. The appellant further submitted that the trial court failed to consider his mitigation that he was a young man of 20 years of age. He urged the court to acquit him of the charges or order a retrial.

5. The state through the Senior Principal Prosecution Counsel, Mr W P Ochieng, submitted that the plea in the case was unequivocal. That the plea was taken in accordance with the law and practice of taking pleas as set out in the case of Adan v Republic (1973) EA 445.

6. The state submitted that the plea was read to the appellant in Kiswahili language which he understood. The ingredients of the offence were explained to him. That the court record indicates that the appellant was properly cautioned on the plea he was making and the resultant consequences. That the appellant thereafter proceeded to confirm the facts to be correct. That the confirmation after caution was adequate.

7. On count 2 the Prosecution Counsel conceded on the second limb on repatriation and submitted that the trial court should not have made an outright order for repatriation but ought to have made a recommendation to the Minister to that end.

8. I have considered the grounds of appeal, the grounds in opposition and the rival submissions tendered thereto. The issue for determination is whether the plea was unequivocal.

9. The manner of taking and recording pleas was succinctly put forth by the Court of Appeal in the case of Adan v Republic (supra) where it was held as follows:ithe charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;iithe accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded;iiithe 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;ivif 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;vif 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.See the Court of Appeal inOmbena v Republic [1981] eKLR.

10. In the instant case the court record indicates that the proceedings were conducted in English/Kiswahili/Kiborana languages. The record shows that the plea was taken as follows:“Substance of the charges and every element thereof has been stated by the court to the accused person in the language that he understands who being asked whether he admits or denies the truth of the charges replies in Kiswahili:Accused - count 1- guilty.Court: Plea of guilty explained and accordingly cautioned and charges read over to him to which he understands and reply-Accused – GuiltyCount 11- GuiltyProsecutor: Facts are that the accused attempted to put his penis on the minor aged 11 years. He is Ethiopian with no permit.Accused: Facts correct.Court: Plea of guilty entered, accused convicted on his own plea of guilty on both counts.Prosecutor: No previous record.Accused: I pray for forgiveness of the court. I am for (?) 20 years.”

11. From this record, it is doubtful whether the plea was unequivocal. The requirement of the law is that when the charges are read to an accused person his reply should be recorded in the exact words used by him. In this case the exact words that the accused used in reply to the charges were not recorded. The court instead recorded the words “guilty’’ which can hardly be the words used by the appellant. In failing to record the exact words used by the appellant, it cannot be known whether what he stated in answer to the charges amounted to a plea of guilty.

12. The law further requires the facts of the case to be given. It is important for the facts of the case to be given as it gives an opportunity to the accused to dispute the facts and enables him to clarify any salient facts of the case. In Adan v Republic (supra) the court stated as follows:“The statement of facts serves two purposes: it enables the magistrate to satisfy himself that the plea of guilty was really unequivocal and that the accused has no defence and it gives the magistrate the basic material on which to assess sentence. It not infrequently happens that an accused, after hearing the statement of facts, disputes some particular fact or alleges some additional fact, showing that he did not really understand the position when he pleaded guilty: it is for this reason that it is essential for the statement of facts to precede the conviction.”

13. It follows that when facts or adequate facts are not given it denies the accused the opportunity to dispute the facts.

14. The facts also enables the court to satisfy itself that the plea is unequivocal. In Obed Kilonzo Kevevo v Republic (2015) eKLR the Court of Appeal held that:“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 person understood the facts to which he was pleading guilty and has no defence.”

15. In the instant case the facts were briefly put that the appellant had attempted to put his penis on the minor aged 11 years. The facts that constituted the “attempt” were not stated. It was not stated where he had attempted to put his penis. In my view the facts as given by the prosecution were not sufficient as to make the appellant to properly understand the charges that he was facing. The inadequate facts denied him the opportunity to dispute them.

16. It was the duty of the trial court to ensure that the appellant clearly understood the charges that he was facing. The offence that the appellant was facing in count 1 carried a minimum sentence of 10 years. It is the practice in our courts that when one is facing a serious charge that may lead to incarceration in prison, the court should warn the accused of the consequences of pleading guilty. The Court of Appeal in the case of Elijah Njihia Wakianda v Republic, Nakuru Criminal Appeal No 437 of 2010 addressed its mind to the issue and stated as follows:… 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.

17. In this case it is recorded that the court cautioned the appellant but it is not stated what the caution was about. It cannot be deduced from the record that the appellant was warned of the mandatory sentence that awaited him in case he pleaded guilty to the charge of attempted defilement. The failure to do so compromised the accused`s right to fair trial.

18. Upon reviewing the record of the trial court in this matter, I find that the plea was not taken in accordance with the law as set out above. There is all likelihood that the appellant did not understand the charges that he was facing. The plea was thus not unequivocal. The conviction is consequently quashed and the sentence imposed on the appellant set aside.

19. Having come to that conclusion, the question is whether I should order a retrial or acquit the appellant.

20. The general principle in regard to re-trials is that a re-trial should only be ordered where the justice of the case demands so. InObedi Kilonzo Kevevo –Vs- Republic (2015) eKLR the Court of Appeal held that:-“Generally, where a suspect has not had a satisfactory trial, the fairest and proper order to make is an order for a retrial. A retrial on the other hand will be ordered only where the interests of justice require it and if it is unlikely to cause injustice to the appellant. In the case of Muiruri vs Republic (2003) KLR 552, the court considered a similar situation and held as follows, inter alia:-“Generally whether a re-trial should be ordered or not must depend on the circumstances of the case. 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 arraignment of the appellant; whether the mistakes leading to the quashing of the conviction were entirely the prosecution making or not.”In the criminal justice system, the law requires that the right of the appellant must be weighed against the victim’s right. In this case the appellant has been in confinement for three (3) years. Balancing the two competing interests, we believe justice demands that the case be re-heard in the subordinate court.”

21. In Samuel Wahini Ngugi vs Republic (2012) eKLR the said court held that:-“The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar vs R (1964) EALR 483, the predecessor to this Court stated as concerns the issue of retrial in criminal cases as follows:‘It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered…In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person’That decision was echoed in the case of Lolimo Ekimat vs R, Criminal Appeal No 151 of 2004(unreported) when this Court stated as follows:‘…the principle that has been accepted to courts is that each case must depend on the particular facts and circumstances of that each case but an order for the retrial should only be made where interests of justice require it.’”

22. The appellant in this case was facing a serious charge in count 1 that carried a minimum sentence of 10 years. He has served 2 years. Both the prosecution and the trial court were to blame for the mistakes that were committed during plea taking. However, there is nothing on record to show that the appellant will be prejudiced by a retrial. I accordingly order that the appellant be retried of the offences before another magistrate of competent jurisdiction other than Hon E K Too.

23. The appellant to appear before the Principal magistrate at Moyale on December 7, 2022.

Orders accordingly.Delivered, dated and signed at MARSABIT this 1st day of December 2022. J N NJAGIJUDGEIn the presence of:Mr Ochieng for RespondentAppellant – Appearing in personCourt Assistant- P. Jillo14 days R/A.