[2022] KEHC 11781 (KLR)

Kamau v Republic (Criminal Appeal E023 of 2022) [2022] KEHC 11781 (KLR) (18 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11781 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E023 of 2022

LM Njuguna, J

July 18, 2022

Between

Richard Njagi Kamau

Appellant

and

Republic

Respondent

Judgment

1. The appellant herein was convicted and sentenced on his own plea of guilty in the Senior Principal Magistrate’s Court at Runyenjes in SPMCCR No. E075 of 2022 for the offence of: Threatening to Kill contrary to section 223 (1) of the Penal Code.

2. The particulars of the offence were that on 14. 02. 2022 at about 1900Hrs at Gikuuri sub location within Embu County, without lawful excuse threatened to kill one Marycent Marigu Njagi by uttering words ‘ I will kill you’’ to the said Marycent Marigu Njagi.

3. The appellant was presented to court on 22. 02. 2022 and wherein the charge and the facts of the case were read out to him and he pleaded guilty and on 8. 03. 2022 he was sentenced to serve 5 years imprisonment.

4. Aggrieved by the conviction and sentence, the accused by a Petition filed on 22. 03. 2022 has approached this court on grounds that :i.The learned trial magistrate erred in law and fact by failing to note that the appellant pleaded guilty out of pressure from the complainant.ii.The learned trial magistrate erred in law and fact by failing to note that the appellant pleaded guilty ignorantly without the knowledge of the implications of his plea.iii.The learned magistrate erred in both law and facts by convicting the appellant without explaining to him the implications of his plea.iv.The learned trial magistrate erred in law and fact by convicting the appellant herein without taking notice that this was a family issue.

5. This Court has therefore been urged to allow the appeal, quash the conviction and set aside the sentence of the trial court.

6. The appellant submitted that the learned magistrate erred when he failed to note that he pleaded guilty out of pressure from the complainant who is his grandmother who had severally sought means to stop him from his habitual drunkenness. Further that, he pleaded guilty unconsciously and that the trial court did not indicate the language the appellant understood. He relied on the case of Fredrick Kizito Vs Republic (Criminal Appeal No. 170 of 2007) on the importance of proper recording in the criminal trial process and that of Albanas Muasya Vs Republic (Criminal Appeal No. 120 of 2004).

7. He further submitted that having pleaded guilty the court ought to have been lenient considering his age and the fact that he was a first offender and hence qualified for the benefit of the least severe punishment. That at plea taking he was confused and did not know the consequences of pleading guilty and in the circumstances the court should order a retrial or a discharge on condition.

8. The respondent on the other hand orally opposed the appeal herein. It cited Section 348 of the Criminal Procedure Code to support its case that the appellant having pleaded guilty, he therefore cannot appeal against the said plea unless he proves that there was impropriety or that the sentence meted out was illegal. That given the punishment of the charge preferred herein carries a maximum sentence of 10 years, the sentence meted out in this case being 5 years was thus legitimate in the given circumstances.

9. This being a first appeal, the role of this court is well settled. It was held in the case of Pandya v R [1957] EA 336 that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.

10. As the appellant was convicted on his own plea of guilty, the matter did not proceed for trial, thus the trial court did not have the advantage of observing the demeanor of the witnesses and hearing them give evidence.

11. Central to the appeal is the question of plea taking and whether the guilty plea was unequivocal. Article 50 (2)(b) of the Constitution states that: -“(2)Every accused person has the right to a fair trial, which includes the right- (b) to be informed of the charge, with sufficient detail to answer it.”

12. Section 207 of the Criminal Procedure Codestates as follows;“207 (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 plea agreement;(2)If the accused person admits the truth of the charge otherwise than by 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.”

13. Courts have had occasion to elaborate on the procedure and the manner in which a plea of guilty ought to be recorded by the trial court. In the case of Adan vs R (1973) EA 445 and in the Court of Appeal case of Kariuki v R (1954) KLR 809 the court was of the view that :-i.The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands.ii.The accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded.iii.The prosecution should then immediately take the facts and the accused should be given an opportunity to change or explain the facts or to add to any relevant facts.iv.If the accused does not agree to the facts or raises any question of his guilt in his reply it must be recorded and change of plea entered.v.If there is no change of plea, a conviction should be recorded as well as a statement of facts relevant to sentence and the accused reply.

14. The appellant herein was presented in court on 22. 02. 2022 and the charges and particulars of the offence were read to him and he pleaded guilty. For completeness, I will reproduce the record of the lower court wherein the accused pleaded as ‘’it is true’’. The court then noted that the appellant herein was convicted on his own plea of guilt and upon mitigation, the appellant had nothing to say. The court then ordered for a pre-sentence report. However, in Mose v R(2002) 1 EA ,163, the Court of Appeal Chunga CJ, Lakha and Okubasu JJA held;“The procedure for calling upon an accused to plead required that the accused admit to all the ingredients of the offence charged before a plea of guilt could be entered against him. The words “it is true” standing on their own did not constitute an unequivocal plea of guilt……..In the same vein, in George Wambugu Thumbi v Republic Criminal Appeal 1 of 2018 [2019] eKLR the Court held:“It is time that when an accused person responds ‘it is true’ to a charge read to him or her, to be asked what exactly he is saying is true to.”

15. Having perused the court file, I note that the trial court did not warn the appellant of the consequences of pleading guilty. The importance of warning the accused person of the consequences of pleading guilty was considered in the case of Elijah Njihia Wakianda v Republic [2016] eKLR where the Court of Appeal held that;-“........We also think that the elements of the offence are not complete if the sentence, especially if it is a severe and mandatory sentence, it 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......”

16. This duty exists not only in relation to capital offences but also in other offences whose sentences may be indefinite or long. The Court must ensure that not only the accused understands the ingredients of the offence with which he is charged at all the stages of the plea taking but also that he understands the sentence he faces where he opts to plead guilty as failure to do so is a violation of the accused’s right to fair trial. [See Fidel Malecha Weluchi v Republic [2019] eKLR].

17. Flowing from the above cases, it was pertinent that the appellant be made to understand and further, be informed of the consequences of his plea. The offence facing the appellant was a serious one and the court ought to have made sure that the appellant was aware of the gravity of the offence facing him.

18. From the above, it is clear that the plea by the appellant was equivocal and the same cannot stand. The question therefore is what orders should this court issue in the given circumstances? The appellant in his submissions prayed that this court order for a retrial or give any other order/s that it deems appropriate.

19. The law as to when a retrial should be ordered has long been settled. In the case of Fatehali Manji v Republic[1966] EA 343 the Court of Appeal when dealing with the same issue, gave the following guideline: -“In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered when the conviction is set aside because of insufficiency of evidence or for the purpose 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; each case must depend on its own facts and circumstances and an order for a retrial should only be made where the interests of justice require it.”

20. Similarly, in the case of Muiruri v R [2003] KLR 552, the Court held that: -“It [retrial] will only be made where the interests of justice require it and if it is unlikely to cause injustice to the appellant. Some factors to consider would include, but are not limited to, illegalities or defects in the original trial. (See Zedekiah Ojuondo Manyala Vs Republic (Criminal Appeal No. 57 of 1980); the length of time which has elapsed since the arrest and arraignment of the appellant; whether the mistakes leading to the quashing of the conviction were entirely of the prosecution’s making or the court’s.”

21. From the authorities above, it is clear that in deciding whether or not to order a retrial, the court must strike a balance between the interests of justice on the one hand and the rights of the accused person on the other.

22. Further, it is trite that criminal justice is not only concerned with the rights of the accused but also the rights of the victims to see that an accused person is procedurally punished for the offence committed if he is found guilty. However, the appellant ought not to be set at liberty for the reasons of the plea being unequivocal. The criminal justice system recognizes retribution as one of the objectives of sentencing and equally, that justice for the victims of the offence ought to be delivered to their door steps. That can only be done where a retrial is ordered and the matter heard on merit. Setting the appellant at liberty will not be in the interest of justice to the victim of the offence herein.

23. The record shows that the appellant was arraigned before court on 22. 02. 2022 and thereafter, the court after receiving the pre-sentence report recorded that the appellant was not remorseful and that only custodial sentence would rehabilitate the appellant and then proceeded to sentence him. Being guided by Article 159(2) of the Constitution which recognizes the principles that should govern the exercise of judicial authority; which are:a.Justice shall be done to all, irrespective of status;b.Justice shall not be delayed;c.………………………………..

24. Further, in reference to the powers of this Honourable Court, [See section in an appeal are 354 of the CPC which include that;(3)The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may—(a)in an appeal from a conviction—(i)reverse the finding and sentence, and acquit or discharge the accused, or order him to be tried by a court of competent jurisdiction; or(ii)……………….(iii)……………….

25. The order that commends itself to me is that of allowing the appeal herein and remitting the matter for a retrial, which I hereby do. The case to be heard by a different magistrate.

26. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF JULY, 2022. L. NJUGUNAJUDGE…………………………………………for the Appellant………………………………………..for the Respondent