[2022] KEHC 14939 (KLR)

JN v Republic (Criminal Appeal E012 of 2022) [2022] KEHC 14939 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14939 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E012 of 2022

LM Njuguna, J

November 9, 2022

Between

JN

Appellant

and

Republic

Respondent

Judgment

1. The appellant herein was charged with the offence of drug trafficking contrary to Section 4(A) of the Narcotic Drug and Psychotropic Substance Control ActNo 4 of 1994 with the particulars being that on February 1, 2022 at about 1600Hrs in Ishiara Township, Ishiara Location in Mbeere North Sub County within Embu County, was found trafficking drugs namely cannabis sativa (bhang) to wit (22) twenty two rolls of small stones with a street value of approximately Kshs 15,000/= which was not medically prescribed.

2. The appellant pleaded guilty to the charge and he was convicted on his own plea of guilty.

3. Being dissatisfied with the conviction and sentence, the appellant lodged the appeal herein. His petition of appeal is dated February 15, 2022 wherein he relied on three grounds of appeal challenging his conviction and sentence.

4. The court thus gave directions that the appeal be disposed off by way of written submissions and both parties complied with the aid directions.

5. The appellant in arguing his case fronted three heads to wit whether the procedure for obtaining the plea of guilty was unequivocal; the appellant submitted that the procedure adopted by the trial court made the plea herein equivocal for the reason that the language that was used to read the charge and in explaining every element thereof is not known to this honourable court. That it is unclear whether the appellant understood the charges he was facing. In the same breadth, it was the appellant’s contention that he was not made to understand the consequences of such a plea or the seriousness of the charges facing him and consequences of his plea of guilty. Further, the trial court did not indicate the exact response of the appellant after the charge was read to him. To this end, reliance was placed on the case of Simon Gitau Kinene v Republic [2016] eKLR; where the court held that it is the duty of the trial court to see that the accused person understands the elements of the charge facing him especially if the evidence suggests that he has a defence ie the charge is likely to attract a custodial sentence. In the end, the appellant submitted that the same did not happen in the case herein and as such, the plea as taken was equivocal.

6. On whether the learned magistrate erred in finding the appellant not remorseful, it was the case of the appellant that indeed, he prayed for leniency by informing the court that he was diabetic and HIV positive. In that regard, the appellant argued that it was erroneous for the trial magistrate to find him unremorseful whereas he clearly explained to the court what his problem was. That the Honourable Court ought to have been lenient in sentencing the appellant but to the contrary, it only lamented on the public outcry in regards to the increase in the usage of such prohibited substances within the area.

7. On whether the sentence meted out was harsh, oppressive and excessive, it was his case that the same was uncalled for, for the reason that the appellant was a first offender and the trial magistrate ought not have meted out a deterrent sentence. That the trial court did not find the appellant herein remorseful and that he gave him no option of a fine but meted him a custodial sentence which the appellant view as being harsh, oppressive and excessive. Further, it was submitted that the appellant has been in prison for a period of over one year and in that regard, he has since learnt his lesson and has reformed. In the end, it was submitted that even if he were to be released today, justice will have been served.

8. In its submissions, the respondent submitted that the Court of Appeal in the case of Adan v Republic [1973] EA outlined the procedures to be followed as well as the manner in which pleas of guilty should be recorded. That from the contents of the proceeding dated February 2, 2022, the charge was read and the substance of the same was explained to the appellant in a language that he understood and wherein he replied that ‘it is true;. It was its case that since the law requires the trial court to record the accused’s exact words, if the appellant responded, ‘it is true’ the learned trial magistrate was only required to record that. Further, the respondent stated that the facts which captured all the elements of the offence were thereafter read out to the appellant and that he did not deny the alleged facts if at all. Further, it was its case that the appellant proceeded to mitigate as a further indication that he indeed committed the offence and as such, he is estopped from denying that he did not comprehend the happenings in the court at that material time.

9. In response to the ground that the trial magistrate should have warned the appellant of the implications of entering a plea of guilty, the respondent relied on the case of Charles Nyaga Mwiti v Republic [2020] eKLR in that, the case highlighted that unless the charge includes a mandatory death or life sentence, there is no legal requirement for the trial court to warn an accused who chooses to enter a plea of guilty.

10. On whether the sentence meted out was harsh, oppressive and excessive, reliance was placed on section 4(a) of the Narcotic Drugs and Psychotropic Substances Act which stipulates a fine of not less than thirty million shillings or to imprisonment for a term of thirty years; and therefore, a five year jail term in the case herein was neither excessive nor illegal.

11. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.[ See Okeno v Republic].

12. However, where an accused person has pleaded guilty to the charge, he cannot appeal on facts. In other words, he can only appeal against the sentence only. In the instant case, the appellant pleaded guilty and was convicted on his own plea, the only issue that this court ought to determine is whether or not in the circumstances of this case, the sentence that was meted out was lawful and/or warranted.

13. In the case of Olel v Republic [1989] KLR 444, it was held that:-“Where a plea is unequivocal, an appeal against conviction does not lie. Section 348 of the Criminal Procedure Code (Cap 75) does not merely limit the right of appeal in such cases but bars it completely.”

14. It follows that the appellant is, by virtue of this section, barred from challenging the conviction and his only recourse was to challenge the extent or legality of the sentence imposed on him by the trial court.

15. That bar, in my view only operates where the plea is unequivocal. Accordingly, that bar does not prevent this court from inquiring as to whether a prima facie plea of guilty was unequivocal or not. Similarly, it does not bar the court from making an inquiry as to whether the facts constituted any offence. Where the plea in unequivocal, I adopt Mwita, J’s holding in John Shikoli Atsunzi v Republic [2016] eKLR that, that would make the conviction unlawful thus justifying the court in addressing itself on the issue of conviction.

16. In Alexander Lukoye Malika v Republic [2015] eKLR the Court of Appeal identified the situations in which a conviction based on a plea of guilty can be interfered with as follows:“A court may only interfere with a situation where an accused person has pleaded guilty to a charge where the plea is imperfect, ambiguous or unfinished such that the trial court erred in treating it as a plea of guilty. Another situation is where an accused person pleaded guilty as a result of mistake or misapprehension of the facts. An appellate court may also interfere where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to law. Also where upon admitted facts the Appellant could not in law have been convicted of the offence charged.”

17. Accordingly, if the plea is equivocal, the court has a duty to step in.

18. The manner of recording of a plea is provided for in Section 207(1) and (2) of the Criminal Procedure Code provides as hereunder:"(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."[See Ombena v Republic [1981] eKLR].

19. It is therefore clear that the charge, the particulars and the facts must be read to the accused in his language or in a language he understands. This is my understanding of the decision in K N vRepublic [2016] eKLR, where it was held that:“The procedure for taking plea follows a well-beaten path. The leading case, Adan v R (1973) EA 445 emphasizes that an accused person must not only understand the language used at his trial but also appreciate all the essential ingredients of the offence charged before his plea can be taken to be unequivocal. This need for taking the greatest care where the accused admits the offence was explained many years before the decision in Adan (supra) in Hando S/o Akunaay v Rex (1951) 18 EACA 307 as follows;‘…before convicting on any such plea, it is highly desirable not only that every constituent of the charge should be explained to the accused, but that he should be required to admit or deny every such constituent.’Where an accused person who has been called upon to plead under section 207 of the Criminal Procedure Code in the subordinate court admits the charge, the proviso to subsection (2) requires the prosecution to outline the facts upon which the charge is founded. The truth or otherwise of the charge is a combination of three things, the charge, the particulars of the offence contained in the charge sheet or information, as the case may be, as well as the facts outlined where the accused pleads guilty. The facts therefore are as important part of a plea as the charge itself. The nature and elements of the offence in totality must be understood by the accused and the trial court must be satisfied about this before accepting them as true. We think the court should also explain to the accused person the natural consequence of pleading guilty, the conviction and likely sentence. In outlining the facts the prosecution’s role is to present the evidence that could have been proven if the case had gone to trial. Therefore for the court to accept a plea of guilty, the facts alleged by the prosecution must be accepted by the accused as accurate and they must, in turn be sufficient in law to constitute and disclose the offence charged, the proof of which must be beyond any reasonable doubt. It is therefore incumbent upon the prosecution, in proof of the charge, to present the exhibits that they would have relied on at the trial.”

20. In this case, it is not clear which language was used save for the fact that it is noted that “the charge and every element thereof has been stated by the court to the accused in a language that he understands’’. It is not clear which language the court used and given that the same is contested by the appellant, it is my humble view, therefore, that the same cannot go unnoticed. I say so for the reason that it was the duty of the Court to ensure that the said facts were not only read over to the appellant but were read over to him in a language which he had indicated that he understood.

21. In this regard I associate myself with the view of the Court of Appeal inElijah Njihia Wakianda v Republic [2016] eKLR that:“Criminal proceedings have serious implications on the life and liberty of persons accused depending on the offence charged. The criminal process is designed for the forensic interrogation and determination of guilt with various rights and safeguards built into it to ensure that only the guilty get to be convicted. Thus the heart of a criminal trial is the tendering of evidence by the prosecution in an attempt to establish the charge. That evidence is given on oath and tested at trial through the process of cross-examination. The accused person essentially gets the opportunity, if he chooses to, to confront and challenge his accusers. He also gets to make submissions and to persuade the court that he is not guilty of the matters alleged. He is also at liberty to testify on his behalf and call evidence on the matters alleged against him. He, of course, has no burden of any kind, the same resting on the prosecution to prove the charge against him beyond reasonable doubt. Given all the safeguards available to an accused person through the process of trial, the entry of a plea of guilty presents a rare absolute capitulation; a throwing in of the towel and a giving of a walkover to the prosecution and often at great cost. A conviction comes with its consequences of varying gravity. Thus it is that the courts, at any rate appellate courts, would not accept a plea of guilty unless satisfied that the same has been entered consciously, freely and in clear and unambiguous terms.”

22. Apart from that the charge facing the appellant was a serious one. In Elijah Njihia Wakianda v Republic (supra) the Court expressed itself as hereunder:“With respect, we find this disturbing. It seems to us that this is part of a template used by courts at plea taking. That is why it speaks of “charge(s)” when there was a single charge and the rather odd “in a language he understands”, when it is more normal and logical to simply state the language used. This smacks of a mere going through the motions, a recital of ritual. While that may not much matter when the plea entered is one of not guilty followed by a trial with all its attendant safeguards, it assumes a critical dimension when the plea is one of guilty and leads to conviction. We think that it is good practice for the specific language used to state the elements of the charge be specifically stated. That should be established by specifically asking the accused what language he understands, and recording his answer before either using the language he mentions or ensuring a translator is present to convey the proceedings to him in the chosen language. We also think that the elements of the offence are not complete if the sentence, especially if it is a severe and mandatory sentence, is not brought to the attention of the accused person. One surely ought to know the consequences of his virtual waiver of his trial rights that the Constitution guarantees him. That did not occur here and yet the appellant was unrepresented calling upon the trial court to be particularly solicitous of his welfare. The officer presiding is not to be a mere umpire aloofly observing the proceedings. He is the protector, guarantor and educator of the process ensuring that an unrepresented accused person is not lost at sea in the maze of the often- intimidating judicial process.”

23. I associate myself with W Korir, J in Abdallah Mohammed v Republic [2018] eKLR where he expressed himself as hereunder:“A plea of guilty can only be entered in respect of an offence known to the law…In a case where an accused person who is undefended pleads guilty to a charge, the court has a duty to ensure that the plea is unequivocal. As pointed out, the Appellant had no legal representation and the trial court ought to have taken steps to ensure that the Appellant understood every element of the charge and the facts read out to him. He also ought to have been warned, and that warning captured on record, that the offence he was about to plead to carried a prison sentence of not less than fifteen years. In my view, extra caution includes the question as to whether or not the facts as read out are true and whether the accused person would wish to make any comment. In fact an accused person should be asked what he means by saying that the charge read to him is true. His explanation should then be captured on the record so as to form part of his plea. From the record, it is apparent that the Appellant was just but a lad aged 21 years and the trial court ought to have gone the extra mile to ensure he understood the consequences of entering a plea of guilty.

24. The need for the court to be cautious when accepting a plea of guilty from an undefended accused person was stressed by Joel Ngugi, J in Simon Gitau Kinene v Republic [2016] eKLR when he stated that:"19. Finally, courts have always held that extra caution needs to be taken in the case of undefended defendants who plead guilty. I have previously held that where an Accused Person is unrepresented, the duty of the Court to ensure the plea of guilty is unequivocal is heightened. In Paulo Malimi Mbusi v R Kiambu Crim App No 8 of 2016 (unreported) this is what I said and I find it relevant here:In those cases [where there is an unrepresented accused charged with a serious offence], care should always be taken to see that the Accused understands the elements of the offence, especially if the evidence suggests that he has a defence…To put it plainly, then, one may add that where an unrepresented Accused Person pleads guilty to a serious charge which is likely to attract custodial sentence, the obligation of the court to ensure that the Accused Person understands the consequences of such a plea is heightened. Here, the Court took no extra effort to ensure this. In these circumstances, given the seriousness of the charge the Court was about to convict and sentence the Accused Person for, it behooved the Court to warn the Accused Person of the consequences of a guilty plea.’”

25. I therefore find that, the manner in which the charge was read out to the appellant did not strictly comply with Section 207(1) and (2) of the Criminal Procedure Code. In the premises, the appellant’s plea cannot be said to have been unequivocal.

26. What is the course available to the Court in such circumstances therefore? In other words, should the Court order a retrial? The Court of Appeal in the case ofAhmed Sumar v R (1964) EALR 483 offered the following guidance:“...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;......”

27. The Court of Appeal likewise had the following to say in the case of Samuel Wahini Ngugi v R [2012] eKLR: -“The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar v R (1964) EALR 483, the predecessor to this Court stated as concerns the issue of retrial in criminal cases as follows:‘It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered…In this judgment the court accepted that a retrial should not be ordered unless the court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person’

28. In this case, the appellant was sentenced to serve a period of 5 years. In those circumstances, the appropriate order would be to order for a retrial and not setting the appellant free in as much as he is diabetic and/or abled differently as submitted by counsel.

29. Accordingly, the appeal is allowed, the appellant’s conviction is hereby set aside and his sentence quashed. I direct that the matter be heard de novobefore a different magistrate.

30. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 9THDAY OF NOVEMBER, 2022. L. NJUGUNAJUDGE…………………………………………..…..for the Appellant…………………………………………….for the Respondent