[2009] KEHC 252 (KLR)
The court found that the trial magistrate failed to inquire into the applicant's mental condition at the time of plea, as required by section 162(1) of the Criminal Procedure Code, despite indications that the applicant may not have been of sound mind. This omission rendered the plea equivocal and the subsequent...
Source-derived case information.
- Citation
- [2009] KEHC 252 (KLR)
- Parties
- Applicant: Isaiah Chengo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 2 of 2009
- Procedural Posture
- Criminal Revision / Application for Revision of Conviction and Sentence
- Outcome
- Conviction and sentence set aside; retrial ordered.
- Judges
- CA Ombija
- Legal Topics
- Plea Taking, Mental Capacity, Unsound Mind, Criminal Procedure, Retrial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Chengo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Application for Revision of Conviction and Sentence
Legal Issues
- 1 Whether the plea entered by the applicant was unequivocal.
- 2 Whether the applicant was of sound mind at the time of plea and commission of the offence.
- 3 Whether the trial court erred by failing to inquire into the applicant's mental condition under section 162(1) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the trial magistrate failed to inquire into the applicant's mental condition at the time of plea, as required by section 162(1) of the Criminal Procedure Code, despite indications that the applicant may not have been of sound mind. This omission rendered the plea equivocal and the subsequent conviction unsafe. The proper course was to set aside the conviction and sentence and order a retrial before a different magistrate, with a mandatory inquiry into the applicant's mental condition before plea is taken.
Court Disposition
Conviction and sentence set aside; retrial ordered.
Orders
- The conviction and sentence of 5 years imprisonment are set aside.
- The applicant shall be retried before the Principal Magistrate Kapenguria, before a different magistrate.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
Criminal Revision 2 of 2009
ISAIAH CHENGO................................................APPLICANT
VERSUS
REPUBLIC......................................................RESPONDENT
REVISION
By a letter received in court on 30th November, 2009, Ms Kendagor for the applicant asked the court to exercise its powers under section 362 and/or 364 of the Criminal Procedure Act (Cap 75) Laws of Kenya to call and examine the record of proceedings in Kapenguria Principal Magistrate Criminal Case 1076/2009 – REPUBLIC Vs ISAIAH CHENGO.
From the record of proceedings, the accused was arrested on 14th November 2009 and arraigned in court on 18th November 2009. He was charged on the same day with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. He pleaded guilty and was committed on his own plea to a sentence of 5 years imprisonment.
His advocate, Ms Kendagor has raised two issues for consideration of the court.
(i)That the plea was unequivocal
(ii)That the applicant was and is not of sound mind.
I invited Mr Mutuku, learned state counsel, to reply to the issues raised by counsel on behalf of his client. Mr Mutuku submitted that the plea was equivocal. However, he raised concern regarding failure of the court to enquire into the mental condition of the accused as at the time of the alledged commission of the offence in terms of the provisions of section 162(1) of the Criminal Procedure Code.
Section 162(1) of the Criminal Procedure Code provides:
“When in the course of a trial or committal
proceedings the court has reason to believe
that the accused is of unsound mind and
consequently incapable of making his defence,
it shall inquire into the fact of unsoundness”.
The learned state counsel was further of the view that the conviction should be set aside and sentence of 5 years be reviewed. The accused should be sent back for retrial before a Kapenguria court by a different magistrate other than Ms Washika.
I have carefully scanned through the proceedings. Having done so, I take the view that the mental condition of the applicant having not been disclosed at the time of the plea, the learned Resident Magistrate should have made enquiry as to whether the accused knew what he was pleading.
Accordingly, the only order that commends itself to me is the order for a retrial before the Principal Magistrate Kapenguria. The accused will have to plead afresh to the charge. An enquiry will have to be made under section 162(1) as to his mental condition. Towards that end the accused shall be produced before the said magistrate on the day of 10th day of December, 2009. In the meantime he will be in custody until then at Kapenguria G.K. Prison.
A copy of this order to be served upon the Principal Magistrate Kapenguria for compliance.
Dated and delivered at Kitale this1st.day of DECEMBER2009.
N.R.O. OMBIJA
JUDGE