[2017] KEHC 1288 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOSa

CRIMINAL APPEAL 125 OF 2015

J S S ……………………………………………..…APPELLANT

VERSUS

REPUBLIC…………………..………………………RESPONDENT

(An appeal arising out of the conviction and sentence of Hon. L. Mbugua, CM delivered on 20th August 2015 in CriminalCaseNo.1157 of 2015 at the Chief Magistrate’s Court at Machakos)

JUDGMENT

The Appeal

The Appellant was charged with the offence of arson contrary to section 332(a) of the Penal Code. The particulars were that on 18th July, 2015 at [particulars withheld] in Kathiani Sub-County within Machakos County, the Appellant willfully set fire to [particulars withheld] Dormitory containing assorted properties of sixty students all valued at Kshs. 2,520,000/= belonging to [particulars withheld] Secondary School.

The Appellant pleaded guilty to the charge and the trial court proceeded to convict and sentence him on 24th August 2015. The Appellant, who was a minor aged 15 years at the time, was placed at Shimo la Tewa Borstal Institution for a period of 3 years. It is against this backdrop that the Appellant has lodged an appeal in his Petition of Appeal dated and filed in Court on 28th August 2015. The grounds of appeal are as follows:

1. That, the learned Trial Magistrate erred in law and fact in proceeding to convict the Appellant despite his not being represented by counsel during the proceedings as by law required.

2. That, the learned Trial Magistrate erred in law and fact in failing to inform the Appellant of his rights under Section 200 of the Criminal Procedure Code.

3. That, the learned Trial Magistrate erred in law and fact in hearing a matter which she did not have jurisdiction to hear.

4. That, the learned Trial Magistrate erred in law and fact in imposing a sentence in contravention of the applicable law.

The Appellant’s legal counsel, O.N. Makau & Mulei Advocates, in addition filed written submissions dated 27th April 2017 in support of the grounds raised. It was contended that Appellant had a right to appeal on other grounds other than the extent and legality of the sentence, contrary to Section 348 of the Criminal Procedure Code, and reliance was placed on the decision in Wandete David Munyoki v Republic (2015) e KLRwhere it was stated that the provisions of Section 348of the Criminal Procedure Code that no appeal is allowed in a conviction arising from a plea of guilty, except to the extent and legality of the sentence, is not an absolute bar to challenging that conviction on any other ground.

On the first ground of appeal, the Appellant placed reliance on Section 77(1) and (2) of the Children’s Act, which provides that when a child is brought before court and he/she is unrepresented, the court may order representation of the child and any expenses incurred should be catered for through monies provided by Parliament. Further reliance was placed on Section 186(b) of the Children’s Act, which states that any accused child unable to obtain legal assistance should be provided an assistant by the Government to aid in preparation of his/her defence.

On the second ground, the Appellant relied on Section 200(3) of the Criminal Procedure Code which states that where a magistrate commences hearing of proceedings and part of the evidence was recorded by his/her predecessor, the accused has a right to be informed of the change and he may demand that any witness be re-summoned or reheard. He submitted that from the typed proceedings of the lower court, there is no indication that the accused was informed of his rights under the section.

Section 79 of the Criminal Procedure Code was also cited regarding transfer of matters in subordinate courts, and it was submitted that the transfer in the trial Court was highly irregular since there was no order of transfer. The case of AdijaAli Salim v Republic(2006) eKLRwas cited where it was held that the plea of guilty was highly untenable since the transfer of the matter was irregular and not in any way in accordance with the provisions of the Criminal Procedure Rules on transfer of cases between magistrates. The Appellant urged this court to find and hold that the above provisions of the law were not complied with, and that this failure was prejudicial and fatal to his case.

The third ground raised by the Appellant was that of jurisdiction of the trial court, and Section 73 of the Children’s Act on the constitution of Children’s Courts was cited in this respect. It was submitted that neither the initial trial court before which plea was taken, nor the subsequent trial court is a children’s court, and that neither of the two had been gazetted by the Chief Justice to preside over children cases. Therefore, that the proceedings occasioned an injustice and amounted to an infringement of the rights of the accused minor.

The fourth and final ground raised was on the sentence imposed, which was alleged to be in contravention of the applicable law, as guided by Section 191(g) of the Children’s Act which provides for the ways in which court may deal with a case once satisfied that a child is guilty of an offence . In particular that the court found that the accused was aged 15 years, and despite the court knowing this it went ahead to commit the accused to Shimo La Tewa Borstal Institution for a period of 3 years, when section 191(g) of the Children Act only provides for such committal for children who are aged at least16 years. The Appellant stated that the committal was therefore illegal and ought to be quashed and set aside.

The Prosecution conceded the appeal in submissions dated 31st July, 2017 by Ms Rita Rono, the learned Prosecution counsel. It was admitted therein that the plea of guilty in the trial Court was entered irregularly, in that the proceedings on 24th July 2015 had not recorded the charge and offence the Appellant had pleaded to. Therefore, it was not clear what offence the Appellant was charged with, and the Prosecution cited the requirements of Section 207 of the Criminal Procedure Code in this regard.

Further, that when the facts were read on 29th July 2017 before the new trial Court, the Appellant did not take a fresh plea before the facts were read to him. In conclusion, the Prosecution submitted that based on the facts tendered by the Prosecution in the trial Court, the school suffered mass destruction of property worth Kshs 2,520,000 ,and the Appellant having admitted that his intention was to get transferred, he should not go unpunished. The Prosecution therefore prayed for a retrial.

The Determination

As this is a first appeal, I am required to conduct a fresh evaluation of all the evidence and come to an independent conclusion as to whether or not to uphold the conviction and sentence. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic[1973] EA 32).

I have considered the grounds of appeal and submissions made, and find that they raise two issues. These are firstly, whether the proceedings pursuant to which the Appellant was convicted were defective; and secondly whether the sentence imposed upon the Appellant was lawful.

On the first issue, I agree with the Appellant and Prosecution that there were irregularities in the proceedings before the trial Court and recording of the plea of guilty for the following reasons. Firstly, it is indeed the position that under section 73 of the Children Act, it is Children’s’ Courts presided over by magistrates appointed by the Chief Justice which have jurisdiction to hear criminal charges against a child, except where the charge is murder or where a child is charged together with persons who are over the age of eighteen years. The proceedings of the trial Court in this regard show that the trial Court was the Chief Magistrates’ Court and not the Children’s Court at Machakos.

The second irregularity noted in the proceedings is that the plea was first taken before Hon. Ocharo PM on 24th July 2015, when orders were given that a mention be made on 29th July 2015 for the facts. There is no record as to whether there was a charge read out to the Appellant on 24th July 2014. On 29th July 2017 the matter came before Hon. L Mbugua CM, when the facts were then read out, which the Appellant stated were true, and a plea of guilty then entered. Therefore, there is no record of any charges ever being read to the Appellant in a language he understood.

The procedure to be applied on the taking of a guilty plea was explained in the case ofAdan vs Republic,[1973] EA 445 where the Court held as follows:-

“(i) The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands.

(ii) The accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded.

(iii) The 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.

(iv) If 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.

(v) If there is no change of plea a conviction should be recorded and a statement of facts relevant to sentence together with the accused’s reply should be recorded.”

This procedure was reiterated by the Court of Appeal in Kariuki vs Republic (1984) KLR 809 .

The elements of a charge, the particulars thereof and the facts giving rise to the charge are a package so to speak, when it comes to the recording an unequivocal plea of guilty. Consequently, the facts giving rise to the charge are required to be read immediately after the admission of a charge to ensure that the Accused person fully understands the facts that he or she is pleading to that constitute the offence he or she is accused of, and is still at liberty after the facts are read to dispute the same and plead not guilty. This also enables the trial court to relate the facts to the offence charged, and determine if they disclose the occurrence of the alleged offence, before proceeding to convict an accused person.

On the other irregularities urged by the Appellant, this Court finds that section 200(3) of the Criminal Procedure Code was inapplicable to the proceedings in the trial Court, as no evidence had been taken before Hon. Ocharo PM to require compliance with section 200(3) when Hon. L. Mbugua CM proceeded with the hearing of the trial. Section 200(3) of the Criminal Procedure Code provides as follows in this regard:

“Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.”

Likewise, section 89 of the Criminal Procedure Code was inapplicable as there was no transfer from one court to another, as the trial Court remained the same, being the Chief Magistrate’s Court at Machakos, and there was only a change of magistrates hearing the case.

On the second issue of the legality of the sentence, this Court concurs with the Appellant that the sentence imposed upon him was not lawful. Section 190(1) of the Children Act prohibits the imprisonment or placement of a child, in a detention camp, while Section 191 provides for ways through which a child offender should be dealt with including:

i) discharging the offender under section 35 (1) of the Penal Code;

ii) discharging the offender on his entering into a recognizance, with or without sureties;

iii) making a probation order against the offender;

iv) committing the offender to the care of a fit person, or a charitable children’s institution

v) ordering the offender to be sent to a rehabilitation school suitable to his needs and attainments if aged between 10 and 15 years;

vi) ordering the offender to pay a fine, compensation or costs;

vii) committing the child who has attained the age of sixteen years to a borstal institution;

viii) placing the offender under the care of a qualified counsellor;

ix) ordering the child to be placed in an educational institution or a vocational training program;

x) jordering him to be placed in a probation hostel under provisions of the Probation of Offenders Act;

xi) making a community service order.

In light of the above provisions, particularly, section 191(g), the sentence of placement in a borstal institution imposed on the Appellant was therefore contrary to the law, as only children who have attained the age of sixteen years can be given such a sentence, and the age assessment filed in the trial Court on 30th July 2015 showed that the Appellant was aged 15 years.

The only outstanding issue then is whether I should acquit the Appellant or order for a retrial as requested by the Prosecution. The principles governing whether or not a retrial should be ordered were enunciated in Fatehali Manji v Republic [1966] EA 343 by the East Africa Court of Appeal as follows:

“In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to the accused person.”

In Mwangi v Republic [1983] KLR 522 the Court of Appeal held that:

“We are aware that a retrial should not be ordered unless the appellate court is of the opinion, that on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result. In our view, there was evidence on record which might support the conviction of the appellant.”

I note that it is now two years since the trial of the Appellant, and that if a retrial is ordered, he may be tried as an adult for an offence committed when he was a minor. The procedural safeguards and legal protections afforded to children may therefore not be available to him. As he may thus be unduly prejudiced, I find that a retrial is not appropriate in the circumstances.

I therefore allow the Appellant’s appeal, quash his conviction for the offence of arson contrary to section 332(a) of the Penal Code, and set aside the sentence of placement in a borstal institution for three years imposed upon him by the trial Court. I accordingly order that the Respondent shall be set free unless otherwise lawfully held.

Orders accordingly.

DATED AND SIGNED AT MACHAKOS THIS 2nd OCTOBER 2017.

P. NYAMWEYA

JUDGE