[2020] KEHC 8920 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 66 OF 2019

JMB................................................APPELLANT

-VERSUS-

REPUBLIC................................RESPONDENT

(Appeal arising from the sentence in Mavoko Principal Magistrate’s Court

(Hon. E. Michieka), in Criminal Case No. 533 of 2019 delivered on 16. 7.2019)

JUDGEMENT

1. This is an appeal from the sentence of Hon. E. Michieka, Principal Magistrate in Criminal Case 533 of 2019 at Mavoko on 16. 7.2019. The Appellant was on 1. 7.2019 charged with the offence of neglect of a child. The particulars of the charge were that the appellant “on the 20th day of February, 2019 at Mlolongo Township, Athi River sub-county within Machakos county being the mother of SW and EE, children aged 1 year and 6 years respectively willfully abandoned the said children thereby causing them to be children in need of care and protection.

2. When the charge was read to her she admitted the same and thereafter a plea of guilty was entered whereupon she was sentenced to 18 months imprisonment.

3. The appellant is dissatisfied with the sentence and sought a reduction thereof.

4. Submitting in support of the appeal, the appellant submitted that she has demonstrated remorse and seeks the courts indulgence.

5. In response, the learned counsel for the state conceded to the appeal and argued that the plea that was not recorded in line with the procedure in the case of Adan v R (1973) EA 446. Counsel pointed out to court that the language that was used to read the facts was not indicated and he urged the court to quash the sentence and set the appellant at liberty.

6. The issues to be determined is the propriety of the plea of guilty and the orders that the court may grant. According to section 348 of The Criminal Procedure Code, no appeal is allowed in the case of any person who has pleaded guilty and has been convicted on that plea by a subordinate court except as to the legality of the plea or to the extent or legality of the sentence.

7. The appellant having been convicted on her own plea of guilty is barred from challenging the sentence pursuant to section 348 of the Criminal Procedure Code except as to the legality thereof. However the record reveals that there are issues with regard to the manner in which the plea was recorded, a priorithe legality of the plea. Hence if there is an issue affecting the legality of the plea then the same provides the appellant with an opportunity to challenge both the conviction and sentence. The irregularity in the plea entitles the appellant to not only challenge the sentence but also the conviction even though her memorandum of appeal only targeted the sentence by the trial court.

8. The correct procedure of recording a plea of guilty and the steps to be followed by the court is now well established following the decision in Adan v. Republic, [1973] EA 446 where Spry V.P. at page 446 stated it in the following terms:

“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 guilt, 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.”

9. It is incumbent upon a trial court when recording a plea to be meticulous in ensuring that the charge is read and explained to the accused in the language he or she understands or is familiar with to enable him or her plead to the same properly and in unequivocal manner. In cases where an accused pleads guilty, to record the answer the accused gives as clearly as possible in the exact words used by the accused. Reading the facts of the case is meant to ensure that an accused’s plea is taken in unequivocal manner and there should be no doubt as whether the accused has understood the charges facing him or her in addition to the substance and every element of the charge.

10. 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 understood the facts to which he or she was pleading guilty and has no defence. A plea is considered unequivocal if the charge is read to an accused person and he pleads guilty and thereafter, the facts are narrated to the accused person and he or she is once more asked to respond to the facts. It is important that both the statement of offence as contained in the charge sheet as well the facts as narrated by the prosecution must each disclose an offence, otherwise the plea is not unequivocal. The facts as read to the accused must disclose the offence. The accused is only to be convicted when facts narrated are in unison with the offence charged (see R v Peter Muiruri & Another (2014) eKLR).

11. The court record does not indicate the language used during the reading of the charge to the appellant. Again there is no evidence that a particular language was used during the reading of the facts to the appellant. This was an irregularity that cannot be cured even under section 382 of the Criminal Procedure Code. The failure by the trial court to indicate the language of interpretation had the effect of vitiating the eventual conviction and sentence. I note that the learned prosecution counsel has rightly concede to the appeal. The guidelines as given in the case of Adan V. R (1973) EA 446 were not followed by the trial court and hence iam inclined to interfere with the conviction and sentence.

12. With all due respect the facts as read out do not indicate the language that was used so as to ensure that the appellant understood the details of the charges that were facing her. In the result, the facts as narrated by the prosecution not being in the language the appellant understood, the plea was equivocal and cannot sustain the conviction. Therefore the appeal succeeds, the conviction is quashed, sentence set aside and the appellant discharged.

13. Where a conviction is quashed and sentence set aside, the question always follows as to whether there should be a re-trial. It is a basic principle of constitutional law, that no person may be twice placed in jeopardy that is, put on trial with the possibility of conviction and punishment, for the same criminal offense. In cases where the appellate court forms the opinion that a defect in procedure resulted in a failure of justice, it is empowered to direct a retrial but from the nature of this power, it should be exercised with great care and caution. An order of a retrial should not be made where for example due to the lapse of such a long period of time, it is no longer possible to conduct a fair trial due to loss of evidence, witnesses or such other similar adverse occurrence.

14. The Court of Appeal in the case of Mwangi vs. Republic [1983] KLR 522 heldas follows;

“…several factors have therefore to be considered. These include:

1. A retrial will not be ordered if the conviction was set aside because of insufficient evidence.

2. A retrial should not be ordered to enable the prosecution to fill up the gaps in its evidence at the first trial.

3. A retrial should not be ordered where it is likely to cause an injustice to the accused person.

4. A retrial should be ordered where the interest of justice so demand.

Each case should be decided on its own merits.”

15. Because of the infraction on the procedure of narrating the facts to the appellant I find that a retrial will occasion injustice because the appellant was sentenced to 18 months imprisonment running from July 2019 when she had been in custody and by the time the matter is sent back to the trial court, she will have served the bulk of her sentence. There is no guarantee that the matter will be heard and finalized in the trial court before the bulk of the sentence is served. I find that the accused stands to suffer if an order for retrial is made. The justice of the case demands that a retrial should not be ordered.

16. In the result the order that commends itself is that the appeal succeeds. The conviction is quashed and the sentence is set aside. The appellant is hereby ordered to be set at liberty forthwith unless otherwise lawfully held.

It is so ordered.

Dated and delivered at Machakos this 30th day of January, 2020.

D. K. Kemei

Judge