[2008] KEHC 2485 (KLR)
The court found that the plea was not properly taken as the facts were not read to the appellant nor did he accept them as correct, contrary to the requirements set out in Adan vs R (1973) EA 445. Furthermore, the charge was fundamentally defective as it cited the wrong statute, making the entire proceedings a...
Source-derived case information.
- Citation
- [2008] KEHC 2485 (KLR)
- Parties
- Appellant: Joseph Kamwea Musembi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 58 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- I Lenaola
- Legal Topics
- Plea Taking, Defective Charge, Conviction Nullity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kamwea Musembi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea was properly taken in accordance with the law.
- 2 Whether the charge was defective and rendered the proceedings a nullity.
- 3 Whether a retrial should be ordered given the circumstances.
Ratio Decidendi
The court found that the plea was not properly taken as the facts were not read to the appellant nor did he accept them as correct, contrary to the requirements set out in Adan vs R (1973) EA 445. Furthermore, the charge was fundamentally defective as it cited the wrong statute, making the entire proceedings a nullity. Given that the appellant had already served more than one month of his sentence and the offence was minor, a retrial would be grossly unfair. The conviction and sentence were therefore quashed and the appellant was ordered to be set at liberty with a refund of his cash bail.
Court Disposition
appeal_allowed
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS
Criminal Appeal 58 of 2008
JOSEPH KAMWEA MUSEMBI …................................ APPELLANT
VERSUS
REPUBLIC…………………….……………………..RESPONDENT
JUDGMENT
1. The Appellant, Joseph Kamwea Musembi was arrested and charged before the Kilungu SRM’S Court with the offence of being in possession of traditional liquor contrary to section 25 (1) of the Traditional Liquor Act, Cap 225. On 28/2/2008, he pleaded guilty to the charge and was sentenced to serve 4 months in prison.
2. The Appeal is substantially on the manner in which the plea was taken and on that point Mr Wang’ondu for the Republic concedes the Appeal.
3. I have seen the record of 28/2/2008 when the plea was taken. The learned magistrate never read the facts to the Appellant before convicting him. The Appellant never accepted the facts as being correct and the anomaly thereby is a fundamental error. The law as I understand it and as was well set out in Adan vs R (1973) EA 445 regarding plea taking was not followed in this case and the plea cannot be said to be unequivocal. That being the case, the proceedings thereafter were rendered a nullity and the conviction and sentence were also rendered a nullity.
4. Mr Wang’ondu, again correctly, does not seek a retrial because the Appellant had served more than 1 month of his sentence before he was released on bond pending appeal. The offence is minor and to subject him to another trial would be grossly unfair.
5. One more thing to say is that Cap 225 is the Kenya National Library Service Board Act and it has no section 25 (1) and it is not the Traditional Liquor Act either, so that in fact the whole charge was defective ab initio.
6. The Appeal has merit and the conviction is quashed, sentence set aside and the Appellant shall remain at liberty and shall have a refund of the Kshs.1,000/= cash bail that he had paid.
7. Orders accordingly.
Dated and delivered at Machakos this 4th day of June 2008.
ISAAC LENAOLA
JUDGE