[2017] KEHC 1200 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CRIMINAL REVISION NO. 11 OF 2017

JOSHUA NJIRI...............................................APPLICANT

Versus

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

RULING

This is an application for review against the decision by the Chief Magistrate at Kajiado in Criminal Case No. 1087 of 2017. The application is brought by way of notice of motion filed in court on 3/10/2017 pursuant to section 362 of the CPC and Article 165 (6) and (7) of the Constitution.

The brief facts:

The applicant had been charged with the offence of obtaining by false pretences contrary to section 313 of the Penal Code. a short recital of the facts revealed that on the 5th day of March 2017 at Bissil Livestock Market in Kajiado Central Sub-County the applicant with intent to defraud, obtained from Silit Lengongu fifteen donkeys, valued at Ksh.180,000 by falsely pretending he will pay the same amount to the complainant.

At the time of the plea, the applicant who was not represented by an advocate admitted the offence. The trial magistrate convicted him on his own plea and was sentenced to serve three years imprisonment. He now seeks a revision of the entire proceedings on conviction and sentence based on the following grounds:

(1) That at the time the applicant was charged with the said offence, the investigating officer in-charge made him believe that he had committed an offence. He went further to even misadvise him to plead guilty to the said offence.

(2) That the applicant was arrested within the court precincts before a complaint had been lodged with the police.

(3) That the applicant was not supplied with the charge sheet showing he had committed an offence and therefore never had an opportunity to seek legal counsel.

(4) That the charge sheet is defective because it did not disclose an offence of obtaining by false pretences.

(5) That the deal between the applicant and complainant was a civil in nature.

(6) That the court ought to have made an order of compensation if at all there was an offence committed.

(7) That it is in the interest of justice that the decision of the court is reviewed and set aside.

Mr. Itaya learned counsel appearing for the applicant submitted that the charge sheet and information relating to the elements of the offence was defective. Learned counsel further contended that the facts in the case are almost of a civil nature which the complainant could have pursued in the proper forum. Learned counsel further submitted that the applicant was not supplied with the charge sheet nor the statement of the witnesses before the trial magistrate entertained the plea. This according to learned counsel was an error of law committed by the learned trial magistrate. Learned counsel further argued and submitted that the complainant had not formally booked the complaint with the police for registration and investigations.

Mr. Akula, the senior prosecution counsel for the respondent argued that though the charge sheet is defective this court should consider whether it can be rectified. It was further argued by senior prosecution counsel that a complainant sought assistance of the police regarding the outstanding debt. In support of the complaint the applicant was arrested and arraigned before the Chief Magistrate for obtaining by false pretences. Learned senior prosecution counsel submitted that in the event the applicant was prejudiced over wide range of situations in his trial this court has the power to revise the order for the interest of justice.

ANALYSIS AND DETERMINATION:

In order to appreciate the rival submissions by both counsels, it is pertinent at this stage to refer to some of the relevant provisions of the CPC. Section 362 “deals with the powers of the High Court to call for and examine the record of any proceedings before any subordinate court for purposes of satisfying itself as to the correctness, legality or propriety of any order passed by the inferior court (read subordinate).”

The high court in exercising its discretion under revisionary jurisdiction should bear in mind the provisions of section 364 of the Code. Under this section no order shall be made to the prejudice of the accused or other person unless he has been given an opportunity to be heard personally through his legal counsel.

The other consideration is that under section 362 as read with 364 the court may exercise any of the powers conferred on the court in its appellate jurisdiction as provided for in section 354, 357 and 358 of the Code. This same code further provides that where an appeal lies but the applicant instead proceeds by way of revision, the court should not entertain such application at the instance of a party.

I have had occasion to consider the scope of Article 159 (d) of our Constitution which states interalia that “justice shall not be administered without undue regard to procedural technicalities;and(e) the purpose and principles of the constitution shall be protected and promoted.”

In light of the above constitutional provisions I am of the conceded view that this court can entertain an application for revision when it’s made under an erroneous belief by an applicant that he did not have a right of appeal. By doing so, this court will treat the application for revision as if it was an appeal and proceed to make orders accordingly.

While exercising powers under section 362 as read with section 364 of the Criminal Procedure Code the court has to keep in mind the constitutional provisions under Article 165 (6) and (7) which provides as follows:

“(6) The high court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi – judicial function, but not over a superior court.

(7) For purposes of Clause (6) the high court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in Clause 6 and may make any order or give any directions it considers appropriate to ensure the fair administration of justice.”

Since the promulgation of our constitution 2010 where questions arise of such a kind like in the instant case it seems inevitable that parties invoke the supervisory jurisdiction of the court. This to me will remain from time to time be the provisions to be engaged by dissatisfied defendants.

This being the legal position the high court has both revisionary power and supervisory jurisdiction under the CPC and the constitution to call and examine the record of any proceedings of a subordinate court or tribunal. It is for the sole purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order.

I see these two tier pronged approach aimed at only one strategic objective that of correcting miscarriage or failure of justice from such a tribunal or subordinate court. The revisionary powers and supervisory jurisdiction vested in the high court not only deals with jurisdictional issues but it also covers all situations where it appears there has been an error, mistake, illegality, impropriety, incorrectness or material in the merit of the case involving injustice. The only rider the applicant’s complaint ought to be within the parameters of Article 165 (6) and (7) of the Constitution and section 362 and 364 of the Criminal Procedure Code.

In the present situation I am satisfied that though the applicant did not exercise his right of appeal the same did not affect the competency of the application under section 362 of the CPC.

The high court has therefore the jurisdiction to supervise subordinate courts and tribunals to ensure quality control by reviewing and correcting errors, mistakes, illegalities for the fair administration of justice. However in order to safeguard the integrity of the court process this power under Article 165 (6), (7) and section 362 of the CPC should be exercised only in rare cases to attain the interest of justice.

The question raised in this case is of general importance. It relates to the scope and ambit of the essentials in taking plea. When the accused was asked to plead to the charge read to him, did he admit it in respect of all essentials of the offence of obtaining by false pretences? Whether by virtue of Article 50 of the Constitution every accused person rights charged with a criminal offence are recognized and protected by the trial courts at the commencement of the indictment?

I bear in mind throughout this discussion the fundamental provisions dealt with in our constitution on the right to equality before the law and the right to presumption of innocence. These rights to me are conditional precedent that the trial court must comply with from the start to the delivery of the final judgement/or order.

Was the plea in this case unequivocal?

To enable the court to adjudicate on this application I am guided by the principles in the classic case of Adan v Republic [1973] EA the Court of Appeal examined in detail and guidelines issued on how to administer the plea against an accused person. The court held on the following integralities:

(1) The person pleading guilty must fully understand the offence with which he is charged.

“The court taking the plea must in its record show that the substance of the chare and every element or ingredient constituting the offence has been explained to him in a language that he understands and that with that understanding an one of his own free will, the pleader admits the charge, 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. If the accused does not agree with the facts or raise any question of his guilt his reply must be recorded and a change of plea entered.”

I start with the minimum guarantees under the law to ensure fairness in plea taking procedure. Several cases have made reference to the principles the trial court has to take into account in the entirety of criminal proceedings from the very beginning.

The court also attended to the principles on the same issue in the case of Republic v Yonasami Egalu & Others [1965] 9 EACA 65 as follows:

“That it is must be desirable that not only every constituent of the charge be explained to the accused person but that he should be required to admit or deny every constituent part thereof of the offence….”

(See also Essentials of Criminal Law Procedure in Kenya by Patrick Kiage JA at pg 90 – 91).

Thus the guideline issued by the court in the decision of Njuki v Republic [1990] KLR 334 is to the effect that “pleas recorded in the words such as I admit, I accept, I pleaded guilty, it is true, I am guilty and so on cannot be considered as unequivocal plea.”

It is settled procedure that in our jurisdiction the language of the court is both Swahili and English language. The constitution of the Republic under Article 50 (2) (m) provides for the “assistance of an interpreter without payment if the accused person cannot understand the language used at the trial.”

From the record learned trial magistrate indicates that the accused understands Swahili. She however fails to record the plea in the accused person’s own words. The reply by the accused to the charge should have been recorded in Swahili with an interpretation into English language provided for by the court.

The procedure provided under section 207 of the CPC is that the court shall record the plea of an accused person as nearly as possible in the words used by him or her. When the court is satisfied that he intends to admit the charge and the truth of all particulars and elements of the offence a plea of guilty will be entered and subsequent conviction and sentence.

This was well demonstrated in a persuasive authority in the case of Sumanya Issah Torr v The National Park Services of Nigeria [2008] LT ELR 8475 where the court held:

“The requirement of the law before there could be a conviction on a plea of guilty are:

(i) The court must be satisfied that the accused understands the charge against him.

(ii) The court must be seized of the facts alleged by the prosecution as constituting the offence charged.

(iii) The court must ask the accused if he admits all the facts alleged by the prosecution.

(iv) The court must be satisfied that the accused intends to admit the commission of the offence charged.

(v) The facts stated by the prosecution and admitted by the accused must be able to sustain the charge against the accused.”

A cursory reading of the authorities referred to above and the court below record as set out is clear that to a large extent hardly were the legal principles and guidelines followed or applied by the learned trial magistrate.

What about observance of the right to a fair hearing?

What is important to bear in mind is for the trial court to ensure the right to equality before the law and the right to presumption of innocence. These are prerequisite conditions that the trial court must fulfill from the time of plea to the delivery of the final judgement. (See Article 50 (2) (a) and 27 of the Constitution). According to Article 50 (2) (b) of the Constitution it provides that, “the accused person has a right to be informed of the charge, with sufficient detail to answer it.”

Thus in the case of Kanda v Government of Malaysia [1962] AC 322 as adopted in the case of Wanjiku v Republic [2002] KLR 825, Article 50 (2) (b) is said to be violated in the following circumstances where the court held:

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused person to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him, and then he must be given a fair opportunity to correct or contradict them. In principle the evidence together with the charge sheet must be produced in advance and supplied to the accused before he is called upon to answer.”

Consequently where an accused is convicted on the basis of a charge sheet read in court for the first time whose information and sufficient details has not been served on him to me would be a violation of Article 50 (2) (b) of the Constitution.

In the same constitution under Article 50 (2) (c) an accused person has a right to be given adequate time and facilities for the preparation of his or her defence. The trial court in my view before inviting the accused/applicant to plead to the charge was under the dictates of the constitution to allow the right to pretrial discovery. The accused was denied the chance to have access to the charge sheet and key witness statements and basic information relevant to the indictment.

I can think of no possible rationale at all why accused persons charged with various offences are not allowed an opportunity to peruse the charge sheet together with witness statements before being invited to answer the charge. The procedure which denies an accused person the opportunity right to know with sufficient detail of the charge and adequate time and facilities to prepare his/her defence is clearly a violation of the constitution. The right to a fair hearing provision under Article 50 of our constitution is the only machinery or vehicle of justice to secure substantive justice to any person charged with an offence within our borders.

The authority of courts has been created by the constitution to be the defender of the bill of rights. The courts hold this key role on behalf of the whole society. It’s important to hold any citizen who is in breach of the law to account for crimes they seem to have committed, but this does not take away the grave responsibility cast upon the courts to ensure observance of the right to a fair trial under Article 50 of the Constitution. This is because the same constitution holds that very person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom (see Article 20 (2).

In applying the provisions of statutes in the administration of criminal justice it does potentially take away a person’s liberty, which is one of the most serious action a court takes against an offender. The fair trial in a nutshell is the cornerstone of just society which believes in the rule of law.

From the material filed before this court I take the following position:

That the plea by the accused was not unequivocal. A further review of the materials and submissions by both learned counsel demonstrate the applicant’s right to a fair trial were infringed more specifically under Article 50 (2) (b) and (c) of the constitution.

First the accused person was not supplied with the charge sheet with sufficient detail to answer, which to me includes witness statement of the complainant. Secondly, the accused person was not accorded adequate time and facilities to prepare a defence. Thirdly, the accused was not informed the penalty prescribed for the offence in the event he pleads guilty. Fourthly, the right to legal representation is anchored under Article 50 (2) (g) and it is incumbent upon the trial court to inform the accused of that right promptly. In my view the onus to bring the resolution of this case within the ambit of Article 50 fell squarely on the learned trial magistrate.

The question I ask myself is whether in this case the rights to a fair trial as contained in Article 50 were infringed or violated in aspect of the accused person? I consider the right to prepare for ones case in our constitution an important component of justice and fair play. I take judicial notice that our criminal procedure code (Cap 750 of the Laws of Kenya) does not prescribe a specific timeline to give effect to Article 50 (2) (c) of the Constitution. In my view trial courts can draw inspirations from the principles of equality, inclusivity and participation in the criminal proceedings as anchored under Article 10 of the Constitution on national values and principles of governance.

This entails that there should be a level playing ground between the prosecution and the accused person(s). There is no dispute that ordinary citizens are more often charged before our courts faced with challenges of knowledge on how courts work, lack of or inadequate legal representation, the complexity of court procedures, unequal financial resources and sufficient knowledge on their rights or obligations etc.

The operation of this right to a fair trial was considered in the persuasive case from South Africa in the case of Sigo Dolo v Attorney General [1985] (2) SA 172E. The brief facts of this case were that “the accused who was unrepresented was summarily tried on his first appearance. He was convicted and his vehicle forfeited to the state upon conviction. On appeal/review he argued that he was denied the right to legal representation and the opportunity to prepare his defence. The court held that the haste with which the applicant was brought before the magistrate may have resulted in a serious miscarriage of justice. The conviction was set aside.”

On many occasions and my career as a judicial officer in the subordinate court and now as a judge of the superior court I am confronted with prima facie evidence of a violation of this right to a fair hearing in the following manner:

The right to allow an accused person time and facilities to read and understand the charge(s). The complainant statement and other evidential material before the plea could be taken.

The right to bail in the event an adjournment is sought and grant to allow an accused to prepare for his defence.

The right to obtain legal assistance before commencement of any proceedings including at the plea taking stage.

The right to an interpreter under Article 50 (2) (m).

An inquiry to be taken in advance as to the most appropriate language.

Particular caution be exercised when an accused person before the court is unrepresented by legal counsel.

An explanation of the penalties in the unlikely exigent the accused admits the offence.

In our country it is common to find accused person indicted with various misdeamenors readily moving to admit the offence without first weighing the consequences. It must be remembered that given our historical/cultural background as a society the maximum ‘ignorance of the law is no defence’ should not be strictly applied to the detriment of the rights of an accused person guaranteed by the constitution under Article 50.

It will suffice also to quote the commentary in yet another case from South Africa in the case of Van Niekerk v Attorney General, Transwaal [1990] SA 806 where the court gave a somewhat stronger direction when it said:

“Where an unrepresented accused pleaded guilty because she believed that she would receive a suspended sentence. The court found that the accused had been prejudiced by having been too hastily arraigned and this had resulted in a failure of justice. The court also held that the magistrate had committed an irregularity by not explaining the possible consequences of a conviction to the accused, and by determining whether she did not require a greater opportunity to consider as was his duty to conduct his case.”

I think in my view the legal principles in the cited persuasive authorities as having a similar effect to the present case I am tasked to determine. I say so because the South African constitution like our own sets out minimum guarantees to ensure that all people can defend themselves and be treated fairly.

In relation to the plea, conviction and sentence in this case the right to information, about rights and charges, access to evidence is paramount in guaranteeing equality and fair trial before the court.

In my own evaluation of the record the pretrial conditions set out in the constitution under Article 50 on supply of information and witness statements ought to be fulfilled before a court of law takes any step in the case. This purposeful approach is to give effect to the due process and right to a fair hearing.

The substance of this revision has been brought within the ambit of the principles and holding in the case of Juma & Others v Attorney General [2003] AHRLR 179 where the court held interalia that, “In an open and democratic society based on freedom and equality with the rule of law as its ultimate defender such as ours the package constituting the right to a fair trial contains in it the right to pre-trial disclosure of material statements and exhibits. In an open and democratic society of our type the courts cannot give approval to trials by ambush and in criminal litigation. The courts cannot adopt a practice under which an accused person will be ambushed. Subject to the rights of every person entructed in the constitution of Kenya and including the presumption of innocence until proved guilty beyond reasonable doubt, the fundamental right to a fair hearing by its nature requires that there be equality between contestants in litigation. There can be no true equality if the legal process allows all party to withhold material information from its adversary without just cause or peculiar circumstances of the case”

According to the facts of this case the trial court held unreasonably hasty plea without factoring in the provisions of Article 50 (2) (b) (c) (j) and (m) of the Constitution. To this extent the proceedings in the trial court against the accused are irregular and not in accordance to the constitution and the criminal procedure code. As a result on this ground I revise the orders on the basis that the proceedings are hereby considered void.

Finally whether the charge disclosed the essential elements of the offence under section 313 of the Penal Code?

This ground on revision touches on the aspect of the elements of the charge of obtaining by false pretences contrary to section 313 of the Penal Code. The scope of the offence includes the following ingredients for an accused person to be held accountable. The false pretense must be over anything capable of being stolen. Secondly there must be an obtaining of the thing with intent to defraud. Thirdly the false statement must induce the complainant to part with his property to the accused.

The framing of the charge or information particularized in the offence against the accused person is very crucial in proving the elements beyond reasonable doubt. If the framing is ambiguous such that the accused stands prejudiced, then it should be considered as defective under section 313. The prosecution must establish false pretence in addition intent to defraud.

It is trite that for the accused to be convicted of this offence the complainant should be actually deceived through the conduct or word inducing him to part with the property. In the instant case the facts accused pleaded to involved him being given 15 donkeys valued at Ksh.180,000 by the complainant. The accused was also to take the donkeys to a third party/market to obtain value which was to be delivered to him at a future date. The complainant agreed to part with the donkeys to the accused who promised to make the payment upon sale. Thereafter the accused was unable to make good his promise to pay the value of the donkeys to the complainant hence necessitating his arrest and indictment.

What comes to my mind immediately is an existence of a commercial relationship between the accused and the complainant. According to the record and facts deduced as placed before the trial court this was an ordinary contract between the accused and complainant. The term of the contract was that the accused was to procure the donkeys from the complainant and to sell on his behalf at Naivasha market. The mode and timeline to conclude the sale was not indicated either in the charge sheet or facts read in court.

It is not in dispute that the accused was not able to fulfill his contractual promise of reimbursing back the value of the sold donkeys within a reasonable time. There is no evidence that the complainant ever booked the report with the police for the payment of the money from the accused.

My evaluation of the facts of this case reveals that this transaction has missing information to bring it within the purview of section 313 of the Penal Code. It is clear that the agreement was for the accused to pay the money after selling the donkeys at Naivasha. How long was the purchaser at Naivasha was to take in paying the accused upon delivering the donkeys is not disclosed from the facts which the trial court applied to convict the accused. The transaction between the accused and the complainant remained to be an act in the future which to me did not amount to obtaining money by false pretence.

A false representation must portray of something that is false. Simply to make a false promise or statement is not sufficient to meet the test of false pretence under the provisions in section 313 of the Penal Code. The accused in this case was not the purchaser of the donkeys. The value of the donkeys complained of was a conditional sale where the money will pass to the complainant only upon completion of the transaction.

The offence of obtaining by false pretences more often than not has always been confused with the offence of cheating contrary to section 315 and obtaining credit by false pretence contrary to section 316 of the Penal Code. This section deals with the whole field of dishonesty in the criminal law. It suffices to say that an over view of the charge sheet and particulars hereof lack these essential elements of the offence contrary to section 313 of the Penal Code. The facts placed before the trial court on 13/9/2017 did not disclose any such offence known or prescribed by parliament within the provisions of section 313 of the Code.

One basic requirement of a fair trial under Article 50 of our constitution is to give a precise information to the accused as to the nature of the complaint against him. In my view the charge sheet being impugned is defective for want of an essential averment by the police. The degree and clarity of the case in which fraud by false representation is alleged against the accused fell short of the legal requirements under the criminal procedure code. (See section 137 of the Code).

As a result there has been prejudice and a failure of justice by a defective in the charge sheet which formed the basis of the conviction and sentence. The state had ample opportunity to amend the charge before they arraigned the accused before court. The defect was entertained throughout the proceedings for reasons best known to the prosecutor and the trial court. According to the application for review as argued by the defence counsel is meritorious because of the reasons advanced elsewhere in this ruling.

The applicant was wrongly convicted and sentenced by the learned trial magistrate was therefore illegal. There was an infringement and violation to his rights to a fair trial under Article 50 of the Constitution. Secondly the plea taken was not unequivocal and finally the elements of the offence contrary to section 313 of the Penal Code were not proved beyond reasonable doubt.

I therefore set aside the conviction and order on sentence. The applicant is at liberty unless otherwise lawfully held.

It is so ordered.

Dated, delivered and signed in open court at Kajiado on 6/11/2017

…………………………………..

R. NYAKUNDI

JUDGE

In the presence of:

Mr. Itaya advocate for the applicant

Mr. Akula for the Director of Public Prosecutions

Applicant

Mateli Court Assistant