[2022] KEHC 14097 (KLR)

Khisa v Republic (Criminal Appeal E079 of 2021) [2022] KEHC 14097 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14097 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E079 of 2021

LN Mutende, J

October 19, 2022

Between

Protus Wekesa Khisa

Appellant

and

Republic

Respondent

(Appeal against the original conviction and sentence in Criminal Case No. E177 of 2021 at the Senior Principal Magistrates’ Court Webuye, by Hon. N. N. Barasa – PM on 7th July, 2021)

Judgment

1. Protus Wekesa Khisa, the appellant, was charged with the offence of causing grievous harm contrary to section 234 of the Penal Code. Particulars being that on September 2, 2022 at Milimani Village, Township Sub-Location in Webuye East Sub-County within Bungoma County, willfully and unlawfully did grievous harm to Judith Khaoya Lumumba.

2. Upon arraignment, the appellant admitted the charge, was found guilty, convicted and sentenced to serve fifteen (15) years imprisonment.

3. Aggrieved, he proffered an appeal and according to the amended grounds of appeal: he pleaded guilty because he is a layman, he did not have an opportunity of cross-examining witnesses; the gravity of the offence was not explained; his rights as enshrined in article 50 (2) of the Constitution were violated, for failure to be supplied with statements and/or other materials to be relied on by the Prosecution. Therefore, he seeks a retrial.

4. Through written submissions the appellant urged that the demerits of pleading guilty were not explained to him, therefore, the trial was not fair which occasioned a miscarriage of justice; that the sentence he is serving is illegal, and, in order for his rights to be protected, there is need for a retrial.

5. The State through learned Counsel, Mr. Ayekha Shakwila opposed the appeal. He argued that the appellant was convicted on his own plea of guilty therefore his appeal is governed by section 348 of the Criminal Procedure Code(CPC)

6. That by the appellant arguing about the extent and/or legality of the sentence, he faulted the trial court for imposing a harsh and excessive sentence. But, considering the sentence provided for the offence, the sentence imposed was not harsh and excessive.

7. My duty as a first appellate court is to re-consider whether what transpired before the trial court was in accordance with the laid down law.

8. The argument raised by the trial court requires this court to consider if the plea was unequivocal. The appellant pleaded guilty at the outset, therefore, the conviction and sentence that resulted having arisen from a plea of guilty, the appeal is governed by the Provisions of section 348 of the CPC which provides that:No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.

9. It is trite that where a plea is unequivocal, a convict has taken responsibility of his action, and no appeal should lie against the conviction. The only issue to be questioned would be legality of sentence. However, in the case of Alexander Lukoye MalikavRepublic (2015) eKLR the Court of Appeal pointed out circumstances in which a conviction following a plea of guilty can be interfered with. It stated as follows;“A court may only interfere with a situation where an accused person has pleaded guilty to a charge where the plea is imperfect, ambiguous or unfinished such that the trial court erred in treating it as a plea of guilty. Another situation is where an accused person pleaded guilty as a result of mistake or misapprehension of the facts. An appellate court may also interfere where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to law. Also where upon admitted facts the appellant could not in law have been convicted of the offence charged.”

10. In the premises the court has to interrogate whether a plea of guilty is unequivocal. The statute provides how a plea should be recorded. Section 207 (1) and (2) of the CPCprovides that: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 a plea agreement.

2. If the accused person admits the truth of the charge otherwise than by a 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.

11. And, legal principles that guide courts in plea taking were enunciated in the case of AdanvRepublic(1973) EA 443 as follows:“When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts……………... If the accused does not deny the facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused’s reply must, of course, be recorded.”

12. Looking at the record, ingredients of the charge were explained to the appellant in Kiswahili, a language that he understood and he responded in the same language. Facts were presented and he admitted the correctness thereto. Having been convicted, he was given the opportunity to mitigate pursuant to Section 216 of the CPC. Even, at that point he did not dispute facts presented. He notified the court that he had a family that depended on him.

13. Following the nature of the case, the appellant was remanded in custody pending obtaining a victim impact statement. Eleven days later the content of the statement was explained to him and he had no comment. All these is not in dispute. The plea was therefore clear and precise. According to article 50(2) of the Constitution alluded to, every accused person has a right to a fair trial. The appellant argues that he was not granted the opportunity to have witness statements, documents the Prosecution would rely on and the chance to cross examine witnesses.

14. Section 208 of the CPC provides thus:(1)If the accused person does not admit the truth of the charge, the court shall proceed to hear the complainant and his witnesses and other evidence (if any).(2)The accused person or his advocate may put questions to each witness produced against him.(3)If the accused person does not employ an advocate, the court shall, at the close of the examination of each witness for the prosecution, ask the accused person whether he wishes to put any questions to that witness and shall record his answer.

15. The argument by the appellant would have been applicable had he denied the charge.

16. The gravamen of the appellant is the question of sentence which he terms harsh and excessive. Section 234 of the Penal CodeProvides thus:Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.

17. The Judiciary Sentencing Policy Guidelines lists the objective of sentencing at page 15, paragraph 4. 1 as follows:“4. 1Sentences are imposed to meet the following objectives:1. Retribution: To punish the offender for his/her criminal conduct in a just manner.2. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.3. Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person.4. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.5. Community protection: To protect the community by incapacitating the offender.6. Denunciation: To communicate the community’s condemnation of the criminal conduct.”

18. In meting out a sentence the court may also consider the seriousness of the offence, the age of the offender,culpability of the victim, genuine remorse by the offender and co-operation of the offender.

19. The trial court took into account the attitude of the accused, injuries inflicted which it opined that were meant to cause death to the victim. I note that the appellant did not express any remorse. It is however worth noting that the appellant pleaded guilty at the outset, hence saved court’s time and he was a first offender.

20. An appellate court rarely interferes with the sentence being a matter of discretion and primarily the responsibility of the trial court. In the case of Bernard Kimani GicheruvRepublic (2002) eKLR It was stated that:“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

21. Although the trial court had the discretion to arrive at a sentence it deemed commensurate to the offence, this is a case where it passed a harsh and excessive sentence, in the premises it should be interfered with.

22. Therefore, I call to this court the sentence meted out, which I set aside and substitute with a sentence of five (5) years imprisonment.

23. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI,THIS 19THDAY OF OCTOBER, 2022. L. N. MUTENDEJUDGE`