[2004] KEHC 786 (KLR)
The court found that the trial was fundamentally flawed because the facts were not read to the appellant when he changed his plea to guilty, and the prosecution was conducted by a police constable not authorized under section 85(2) of the Criminal Procedure Code. These procedural irregularities rendered the...
Source-derived case information.
- Citation
- [2004] KEHC 786 (KLR)
- Parties
- Appellant: Jeremiah Sikolia Masika; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 141 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentences set aside; appellant set free
- Judges
- JK Sergon
- Legal Topics
- Plea of Guilty, Competency of Trial, Unauthorized Prosecution, Conviction and Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Sikolia Masika
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's conviction was competent where facts were not read to him upon change of plea.
- 2 Whether prosecution by an unauthorized person under section 85(2) of the Criminal Procedure Code rendered the trial a nullity.
Ratio Decidendi
The court found that the trial was fundamentally flawed because the facts were not read to the appellant when he changed his plea to guilty, and the prosecution was conducted by a police constable not authorized under section 85(2) of the Criminal Procedure Code. These procedural irregularities rendered the conviction and sentence incompetent. The court held that there was no competent trial, conviction, or sentence, and therefore allowed the appeal, quashed the conviction, and set aside the sentences.
Court Disposition
appeal allowed; conviction quashed; sentences set aside; appellant set free
Orders
- The conviction is quashed.
- The sentences are set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO. 141 OF 2002
JEREMIAH SIKOLIA MASIKA …………… APPELLANT
VS
REPUBLIC …………….. RESPONDENT
J U D G M E N T
Jeremiah Sikolia Masika, the appellant herein was convicted on his plea of guilty to a charge containing two counts. The first count relate to a charge of Burglary contrary to Section 304 (2) and stealing to contrary to Section 279 (b) of the Penal code. The particulars are that on the night of 13th – 14th day of June 2002 at Lutonyi village Kimbingei location in Bungoma district within Western Province, broke and entered the dwelling house of George Masafu with intent to steal therein and did steal there in assorted households, namely gas cylinder, one bed, one set of sofa, 3 mobile phones, beddings the property of the said George Masafu valued at Ksh. 30,000/=.
The second count was in respect of the offence of house breaking contrary to section 304 (i) and stealing contrary to section 279 (b) of the penal code. The particulars relating to this charge are that on the 21st day of June 2002 at Lutonyi village Kibingei location in Bungoma district within western province, broke and entered the dwelling house of George Masafu with intent to steal therein and did steal two radios, perfumes, novels, aviation bag and music compacts the property of the said George Masafu, the said property being of the value of Ksh.15,000/=.
The prosecution case before the trial court was conducted by Police constable Nancy. The evidence of three witnesses were taken after which she closed the prosecution’s case. The appellant was placed on his defence but at that stage he changed his plea and pleaded guilty. He was then convicted and sentenced to serve 4 years with 2 strokes of the cane in respect of count I and 2 years with 2 strokes of the cane in count 2. The sentences were ordered to run concurrently. Being aggrieved he now appeals to this court. He has put forward 6 grounds of appeal in his petition of appeal. All the six grounds of appeal do not challenge the sentence but relate to grounds against the conviction.
However being the 1st appellate court I am entitled to re-evaluate, assess and analyse the evidence that was tendered before the trial court. The record reveal that the facts were not read to the appellant when he changed his plea upon being placed on his defence. The following passage is reproduced.
“Prosecution: Facts are contained in the evidence adduce d in court.
Court: Facts summarised are from evidence of the prosecution witnesses.
Accused: Facts are true, I admit them.”
Where the facts are not read to the accused person there can never be a competent plea. The trial court relied on the evidence of the prosecution witnesses who were presented to the trial court by P.C. Nancy. It is obvious that P.C. Nancy who conducted the prosecution case was not authorised to do so under section 85 (2) of the criminal procedure code. Consequently there was no competent trial before the trial court. In such a case I am not bound to consider the merits of the appeal.
In my humble view there was no competent conviction and sentence. The appeal is allowed on that ground. In the end the conviction is quashed and sentences set aside. The appellant is set free forthwith unless lawfully held.
DATED AND DELIVERED THIS 28TH DAY OF MAY 2004
J.K. SERGON
JUDGE