[2019] KEHC 5646 (KLR)
The court found that the appellant's plea was unequivocal because she responded affirmatively to the charge and facts when read in Kiswahili, and her request for leniency in mitigation further demonstrated her understanding of the proceedings. The sentence imposed was lawful as it complied with the minimum...
Source-derived case information.
- Citation
- [2019] KEHC 5646 (KLR)
- Parties
- Appellant: Judith Kambura; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 14 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Female Genital Mutilation, Plea Taking, Sentencing, Language of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Judith Kambura
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea entered by the appellant was unequivocal.
- 2 Whether the sentence imposed was excessive or unlawful.
Ratio Decidendi
The court found that the appellant's plea was unequivocal because she responded affirmatively to the charge and facts when read in Kiswahili, and her request for leniency in mitigation further demonstrated her understanding of the proceedings. The sentence imposed was lawful as it complied with the minimum requirements set by Section 29 of the FGM Act No. 32 of 2011. The appeal lacked merit on both the conviction and sentence, and was therefore dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed for lack of merit.
- The conviction and sentence of the trial court are upheld.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KNEYA AT MERU
CRIMINAL APPEAL CASE NO. 14 OF 2019
JUDITH KAMBURA.....................................................APELLANT
VERSUS
REPUBLIC................................................................RESPONDENT
JUDGEMENT
Judith Kambura preferred this appeal arising out of Githongo SRMC CR.C.No. 58 of 2019 where she was charged with the offence of allowing FHM to be performed contrary to section 20(b) as S.29 of FGM Act No. 32 of 2011.
Particulars were that the appellant on the 21st day of December 2018 at around 3. 00 pm at Kauthene Sub-location Kiagu Location in Imenti contrary Sub County within Meru County being the mother of MG did allow FGM on the MG a child aged 12 years.
Appellant pleaded guilty to the charge and was fined Ksh 200,000/= in default to serve 3 years imprisonment. She appealed on the ground that the plea was not unequivocal and that the sentence meted out was excessive in the circumstances.
The appeal was canvassed by way of written submissions. The appellants counsel submitted that appellant was not asked which language she understood before the plea could be read to her in the Kiswahili language. It was submitted that the appellant was an illiterate woman from rural Tharaka and therefore the plea was not unequivocal as it was not read in the language the appellant understood.
The appellants counsel also argued that the court failed to tamper justice with mercy even after appellant in mitigation prayed for leniency. According to appellants counsel the complainant was the appellant’s child and this being a family issue a fine of Ksh. 10,000 would have been sufficient.
The appellant was arraigned in court on 14. 1.2019 and the charge read to her in Kiswahili and she replied that it was true. Matter was deferred to 15. 1.2019 for facts and when the facts were read to her in Kiswahili language she again said it is true and a plea of guilty was entered and she was convicted.
The fact that appellant sought for leniency in her mitigation after she had been convicted is a sign she understood the proceedings that were going on in court against her. I do find that the plea was unequivocal and that appellant was properly convicted on her own plea of guilty.
Concerning the sentence Section 29 of the FGM Act No. 32 of 2011 provides for a term not less than 3 years or a fine of not lesser than Ksh. 200,000/= or both. The sentence meted out was therefore legal. The appeal is dismissed as it doesn’t have merits.
HON A. ONG’INJO
JUDGE
JUDGMENT DELIVERED, DATED AND SIGNED IN COURT ON 27TH DAY OF JUNE 2019.
In the presence of :
C/A: Kinoti
State : Ms Mbithe for state
Mr Kimathi Kiara Advocate for Appellant –N/A
Appellant present in person
Court: Right of Appeal in 14 days.
HON A. ONG’INJO
JUDGE