[2022] KEHC 13654 (KLR)

Katunda v Republic (Criminal Appeal E035 of 2022) [2022] KEHC 13654 (KLR) (11 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13654 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E035 of 2022

LM Njuguna, J

October 11, 2022

Between

John Muchangi Katunda

Appellant

and

Republic

Respondent

(An Appeal against conviction and sentence by Hon. J. Gichimu in Criminal Case No. 228 of 2020 at SPM’s Court at Runyenjes delivered on 18. 10. 2021)

Judgment

1. The appellant herein was charged with the following counts;Count IConspiracy to commit a felony contrary to section 393 of the Penal Code and the particulars of the offence were that John Muchangi Katunda, Brian Njeru Njagi, Simon Gitonga Njuki, Kelvin Munene Mburu and Purity Murugi on the diverse dates between May 22, 2020 and May 30, 2020 at Runyenjes Police Station in Embu East Sub County within the Embu County jointly with others not before the court conspired to commit a felony namely escape from lawful custody.Count iiPreparation to commit a felony contrary to section 308(1) of the Penal Code and the particulars were that John Muchangi Katunda,Brian Njeru Njagi,Simon Gitonga Njuki and Kelvin Munene Mburu on May 30, 2020 at Runyenjes Police Station custody in Embu East sub County within Embu County, jointly with others not before court, were found armed with dangerous weapon namely hack saw blade and having cut cell’s ventilation grills, in circumstances that indicated that they were so doing with intent to commit a felony namely escape from lawful custody.

2. The accused persons were arraigned in court on the June 3, 2020 and they all pleaded not guilty to both counts. However, when the case came up for hearing on the September 30, 2020, the appellant herein, who was the 1st accused person, changed his earlier plea and instead pleaded guilty to both accounts.

3. The facts of the case as read by the prosecution were that; on diverse dates between May 22, 2020 and May 30, 2020 at Runyenjes police station, the 1st accused (appellant herein) together with others before the court conspired to escape from lawful custody i.e. Runyenjes police station. That they arranged for the 5th accused who is the spouse of the 1st accused to sneak in a hacksaw which they used to cut the grill to the cell ventilator.

4. That on the May 30, 2020 an officer was doing nature patrol when he noted one of the ventilators grill was loose as it had been cut. He proceeded to conduct a search inside the cell which accused were being held and he recovered a hacksaw which the accused persons were using and following the said search, the grill was recovered, the hacksaw and a bar of soap which was used to cover up the cut grill. (All the above items were produced as exhibits).

5. The court thus proceeded to convict the appellant and was sentenced to serve 2 years in prison for count 1 and 7 years for count 2. Both sentences were ordered to run concurrently.

6. The appellant being dissatisfied with the said conviction and sentence preferred an appeal on grounds set out in his undated petition of appeal wherein he listed the following grounds;i.That the trial magistrate erred in convicting the appellant yet he was intimidated, beaten to accept the charges.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 trial magistrate erred in law and fact by convicting the appellant yet he was innocent.

7. This being a first appeal, this court has a duty to reconsider and re-evaluate the evidence to arrive at its own conclusion. In the case of Kiilu andanotherv R [2005] l KLR 174. The court of appeal stated the principles governing the hearing of first appeals as follows;An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’ findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”

8. The appellant submitted that he was not given a fair trial and as a result, was prejudiced by the determination reached by the trial court. He submitted that his rights were breached and further that, he was discriminated upon when his fellow co-accused were acquitted while he was the only one who was found to be culpable. Further that, the 2nd and 5th accused persons were released in a manner inconsistent to the provisions of law and as such, he urged this court to allow the appeal, quash the conviction and set aside the sentence of the trial court.

9. As earlier noted, the appellant pleaded guilty to both counts. 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. As the appellant herein pleaded guilty and was convicted on his own plea of guilty, the only issue that this court could determine was whether, in the circumstances of this case, the sentence that was meted to him by the trial court was lawful and/or warranted.

10. In the case ofOlel 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.”

11. That bar, in my view, only operates where the plea is unequivocal. Accordingly, that bar does not limit the court from inquiring as to whether a 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 agree with Mwita, J’s holding inJohn Shikoli Atsunzi v Republic [2016] eKLR that that would make the conviction unlawful thus justifying the court in addressing itself to the issue of conviction.

12. The procedure of taking a plea is clearly set out in section 207 of the Criminal procedure Code and which provision was expressed in the celebrated case ofAdan v Republic (1973) EA 445. As a procedure, 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. The accused’s own words should then be recorded and if they are an admission, a plea of guilty should be recorded. 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 raises any question of his guilt, his reply must be recorded and change of plea entered. If there is no change of plea, a conviction should be recorded and a statement of facts relevant to sentence together with the accused’s reply should be recorded. [See alsoOmbena v Republic [1981] eKLR and John Muendo Musau v Republic [2013] eKLR].

13. Central to the appeal is the question of plea taking and whether the plea of guilty 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.”Section 207 of the Criminal Procedure Code states 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.”

14. The question then is whether this procedure was followed. The trial court record indicates that the appellant herein was presented before the court on September 30, 2020 and the charges were read and explained to him in Kiswahili and the appellant responded that “it is true”. Thereafter, the prosecution read the facts of the case and the appellant responded that the facts were correct.

15. I also note from the record that the court proceeded to convict the appellant and thereafter he was given an opportunity to mitigate upon which the trial court noted that it had considered the appellant’s mitigation and then ordered for a pre–sentence report. On October 28, 2020, the court sentenced the appellant to serve two years in prison in count 1 and 7 years in count 2.

16. One of the grounds of appeal raised by the appellant is that he was tricked and beaten to plead guilty and that he is a lay person who did not understand court procedures. However, it is my view that this ground was raised as an afterthought. The appellant did not raise the issues with the trial court and neither did he request for legal assistance from the court. Further, it is a general rule that ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to be an element of the offence. [See section 7 of the Penal Code]. I therefore find that the said ground cannot succeed.

17. The upshot is that the plea entered against the appellant was unequivocal. There was no breach of the appellant`s right to fair trial and the conviction and the sentence meted out by the trial court are within the law.

18. In the end, I find that the appeal is devoid of any merit and I hereby dismiss the same.

19. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE……………………………………….…..for the Accused…………………………………………….for the State