[2023] KEHC 25513 (KLR)

Isungu v Republic (Criminal Appeal E053 of 2022) [2023] KEHC 25513 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25513 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E053 of 2022

TM Matheka, J

November 17, 2023

Between

Benjamin Kyalo Isungu

Appellant

and

Republic

Respondent

(From the original conviction and sentence of Hon. B.N Ireri (SPM) in Makindu Senior Principal Magistrate’s Court Sexual Offence No. E005 of 2021 delivered on 2nd September 2021)

Judgment

1. The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 24th day of January 2021 in Makindu Sub-County within Makueni County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of AM, a girl aged 12 years.

2. In the alternative he was charged with committing an Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that on the same day and place, the appellant intentionally and unlawfully did an indecent act by touching the vagina of AM, a child aged 12 years with his penis.

3. When the plea was first taken on the 26th January 2021, the appellant pleaded not guilty.

4. On the 13th May 2023 the matter proceeded for hearing when the complainant testified. She told the court how on the 5th June 2021 the appellant defiled her, Upon completion of her testimony the appellant told the court“I have no questions to ask as what she has told the court is true, I am 23 years old ... ”

5. The prosecution while seeking an adjournment to stand down the witness to come back and identify some exhibits, urged the court to find that the appellant had confessed to the offence. The learned trail magistrate declined and put the matter for further hearing.

6. On 1st July 2021 the appellant appeared and made the application “Naomba nisomewe mashtaka". The charge was read to him afresh and he pleaded “ni ukweli” . The learned trial magistrate refereed him for mental assessment. The reprt came back that he was fit to plead and on the on the 5th August 2021 the facts were read to him.

7. That on 24th January 2021 at 6. 00pm, the complainant-a child aged 12 years-returned from grazing her parent’s goats at a nearby shamba. Her mother sent her to borrow gum for bicycle repair from one Alex. She did not find Alex but found the appellant who followed her from behind and when she reached near a bush, he grabbed her hand and pushed her to the bush. He blocked her mouth with his hand, forcefully removed her panty and defiled her using his penis on her vagina. She screamed but nobody went to her rescue. When the appellant finished, she ran home screaming and crying and informed her mother what the appellant had done. The mother screamed and attracted members of the public who chased the appellant and apprehended him. They took him to the complainant’s home where the complainant identified him. He was escorted to the police station and the complainant was taken to the hospital where she was treated. The prosecution produced the birth certificate (P. Ex 1) P3 form (P. Ex 2), PRC form (P. Ex 3), Lab test notes (P. Ex 4a-h), outpatient card and treatment notes.

8. He pleaded guilty to the facts “maelezo ya kesi ni ya ukweli” and was convicted . In mitigation he told the court “sina malalamishi yeyote” the state submitted that he was a first offender.

9. The court sought a pre- sentence report.

10. The appellant was sentenced to 40 years’ imprisonment.

The Appeal 11. Aggrieved by that decision, the appellant filed this appeal and raised 3 grounds as follows;a.That the learned trial magistrate erred in law and fact to convict the appellant wholly as the sentence was harsh and excessive as a whole.b.That the learned trial magistrate failed to note that the prosecution failed to follow the correct procedure as per the law.c.That the learned trial magistrate did not explain to the appellant the consequences of pleading guilty to the charge.

12. The appeal was canvassed through written submissions. Accordingly, the parties complied and filed their respective submissions.

The Appellant’s Submissions 13. The appellant argued the three grounds together.

14. Relying on Adan v R 1973 EA 445, he submitted that the procedure of recording plea was not adhered to. That it is not certain that the prosecutor stated the facts and that he was given an opportunity to dispute, explain or add relevant facts. He submitted that the bald record captures the prosecutor saying; ‘Facts as per the charge sheet’.

15. He submitted that the charge sheet, particulars and facts must be read to the accused in a language that he understands and that the accused must not only understand the language used at his trial but also appreciate all the essential ingredients of the offence. He relied on Hando S/O Akunaay v Rex (1951) EA CA 307 for the submission that the natural consequence of pleading guilty should be explained to the accused.

16. He submitted that the record is not clear about the language he indicated to understand since the interpretation is indicated as English. That the plea as recorded was standard form rubberstamp. He also cited the case of Paul Mutungi v R [2006] eKLR where it was held that in cases carrying death sentence, it is essential for the court to warn the accused of the consequences of his pleading guilty namely; that he may be sentenced to death if he pleads guilty. He contended that he was not warned about the offence he was facing thus pleaded guilty without knowing the sentence he was facing. Further, he submitted that the warning is not only applicable to capital offences but also to offences which have long sentences.

17. In conclusion, he submitted that since the plea was unequivocal a retrial is not an option and the only recourse is acquittal.

Submissions by the Respondent 18. The State, through Prosecution Counsel Vera Omollo relied on section 25 of the Evidence Act for the submission that the appellant admitted through a confession and despite being warned about the consequences by the court; he went ahead and pleaded guilty. She cited the case of Republic v Malim Komora Godana & Malindi High Court Crim. Case No.4 of 2006 where the court stated as follows:“So confessions envisaged under section 25A can be taken before a Court presided over by a judge or magistrate – or even a Kadhi. What kind of confession can be taken by a Court? Only judicial as opposed to extra-judicial confession can be received by (a) Court. Judicial confessions are those which are made in court in the due course of judicial proceedings, where a suspect makes an unequivocal plea of guilty to a charge under the protecting caution and oversight of the judge or magistrate. The reception of a confession in this manner renders it unnecessary to call witnesses in support of the charge.”

19. She submitted that the sentence imposed was meant to deter members of the public and the appellant from committing crimes of such nature. She submitted that sentences are meant to meet the objectives of retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. She relied on the case of Nicholas Mukila Ndetei v Republic [2019] eKLR where the court stated:“... The need to protect the society clearly requires the Court to consider the impact of the incarceration of the offender whether beneficial to him and the society or not...”

20. She submitted that the appellant deserved the 40 years imprisonment due to the severity of the offence and the trauma caused to the complainant.It is now settled that the duty of a first appellate Court is to scrutinize the evidence on record, make its own findings and draw its own conclusions giving due allowance to the fact that the trial Court had the advantage of seeing and hearing the witnesses. The Court of Appeal in Kiilu & Another v Republic [2005]1 KLR 174, that:An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses."

21. Properly guided I have considered the appeal, the r submissions and the entire record, and the following issues arise for determination;a.Whether the plea was unequivocal.b.Whether the sentence is was harsh and excessive.

Whether the plea was unequivocal. 22. The procedure for taking plea is provided under section 207 of the Criminal Procedure Code as follows;(1)`The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement.(2)If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary:Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded.

23. The procedure was elaborated in the celebrated decision of Adan v Republic (1973) EA 445 at 446 as follows;“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 the 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.”

24. The record shows that on 21st January 2021, the appellant denied the charges and a plea of not guilty was entered. Thereafter, the matter was mentioned six times and on 13th May 2021, the hearing commenced. The complainant was subjected to voir dire examination after which she testified on oath. The appellant was called upon to cross examine the complainant and he stated as follows;“I have no questions to ask as what she has stated is true. I am 23 years old. I don’t recall the date I was born.”

25. The record of 1st July 2021 shows as follows;Accused: Naomba nisomewe mashtakaCourt: Charge read to the accused, 1st count who statesNi ukweliPlea of guilty entered.

26. I have set out the record herein above. It is evident that after the appellant was examined by a psychiatrist to establish his mental status and the report dated 5th July 2021 from Makueni Medical Superintendent indicated that the appellant was fit to stand trial was produced before the court recorded shows as follows;“The accused person states that he is still pleading guilty to the charges despite of the court warning of the nature of the offence and the possible sentence provided.”

27. There after the facts were read to the appellant as above and he proceeded to plead guilty to the facts.

28. Consequently, the appellant was convicted on his own plea of guilt. From the record, it is clear that several assertions by the appellant have been rebutted. Firstly, he argued that the prosecutor relied on facts as per the charge sheet but it is clear that the facts were given in detail and recorded. Secondly, he argued that his language of choice is not clear as the translation is indicated to be English. However, the record of 21st January 2021 is clear that the court established that the appellant understood Kiswahili and the charges were read and he understood. His responses were also in Kiswahili, the language he charges were read in the Kiswahili language which he understood.

29. This is buttressed by the fact that his responses were in Kiswahili and were recorded as such. Thirdly, he argued that the trial court did not warn him about the consequences of pleading guilty and the possible consequences but clearly, the record shows otherwise. It is noteworthy that the appellant changed his plea after hearing the complainant’s evidence hence no doubt in my mind that he was aware of the charges against him. The trial magistrate took great caution by ordering a psychiatric examination of the appellant in order to ensure that he comprehended his decision of pleading guilty. It is therefore my considered view that the plea was unequivocal.

Whether the sentence is harsh and excessive?. 30. Section 8 (3) of the Sexual Offences Act provides that;“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”

31. It is now trite that the trail court has the discretion in sentencing even with regard to offences where statutes provide minimum and mandatory terms. In this case, the trial magistrate expressed himself as follows;“I have looked at the probation report which is not positive for non-custodial sentence. I have considered the age of the accused person and the seriousness of the offence. I hereby sentence the accused person to 40 years in jail.”

32. I do not see anything to suggest that the trial magistrate exercised his discretion improperly. However, taking into consideration the Sentencing Policy Guidelines, the trial court ought to have weighed the gravity of the offence and it impact on the victim against the mitigation factors that the accused had pleaded guilty, that he was a first offender, and was relatively young, and could reform.

33. The appeal succeeds only in part. The conviction is sustained.

34. In the circumstances I consider that the sentence of 40 years to be harsh and substitute it with a sentence of 20 years’ imprisonment to commence from the date of arrest 24th January 2021.

DATED SIGNED AND DELIVERED THIS 17TH DAY OF NOVEMBER 2023MUMBUA T MATHEKAJUDGECA - MwiwaAppellant - presentFor State - Kazungu