[2019] KEHC 4534 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

(CORAM: CHERERE-J)

CRIMINAL APPEAL NO. 13 OF 2015

BETWEEN

KINGSTONE PETER MABONGA..........APPELLANT

AND

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

(An appeal from the conviction and sentence in Criminal Case Number 92 OF 2016 in the Senior PrincipalMagistrate’s Court at Kimilili by Hon. M.A.Nanzushi (Ag. SRM) on 02. 02. 15)

JUDGMENT

The Trial

1. On 02nd February, 2015, the Appellant herein KINGSTONE PETER MABONGApleaded guilty to a charge of arson contrary to section 322(a) of the Penal Code (hereinafter referred to as the Act) and was sentenced to serve life imprisonment.

The Appeal

2. Aggrieved by this decision, the appellant lodged the instant appeal on 10th February, 2015. From the 6 grounds of appeal Appellant raises two grounds that the plea was not unequivocal and that the sentence as harsh.

3. When the appeal came up for hearing on 08. 08. 19, the Appellant chose to wholly rely on the grounds of appeal and written submission filed on 25th July, 2019.

4. Mr. Akello, Learned Counsel for the state stated conceded the appeal on the ground that the language of the court was not indicated and that the plea of guilty was therefore not unequivocal.

Analysis and determination

5. This is the first appellant court and as such I am guided by the principles set out in the case David Njuguna Wairimu V Republic[2010] eKLR where the Court of Appeal stated:

“The duty of the first appellate court is to analyse the re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

6. The appellant is appealing both on conviction and sentence. In the case of Adan vs Republic [1973] EA LR 445, the court set out the steps to be followed by a court when taking plea. It was adopted in Kariuki vs Republic [1954] KLR 809where it was held: -

“The manner in which a plea of guilty should be recorded is:

(a) the trial magistrate or judge should read and explain to the accused the charge and all the ingredients in the accused’s language or in a language he understands;

(b) he should then record the accused’s own words and if they are an admission, a plea of guilty should be recorded;

(c) the prosecution may 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;

(d) if the accused does not agree to the facts or raises any question of his guilt his reply must be recorded and a change of plea entered but if there is no change of plea, a conviction should be recorded together with a statement of the facts relevant to sentence and the accused’s reply – Adan v Republic [1973] EA 445”.

7. Courts have always held that extra caution needs to be taken in the case of undefended defendants who plead guilty. In the case of Paulo Malimi Mbusi v R Kiambu Crim. App. No. 8 of 2016 (unreported), the court held that where an Accused Person is unrepresented, the duty of the Court to ensure that the plea of guilty is unequivocal is heightened.

8. In Simon Gitau Kinene v Republic [2016] eKLR, the court held as follows:

“In those cases [where there is an unrepresented Accused charged with a serious offence], care should always be taken to see that the Accused understands the elements of the offence, especially if the evidence suggests that he has a defence.….To put it plainly, then, one may add that where an unrepresented Accused Person pleads guilty to a serious charge which is likely to attract custodial sentence, the obligation of the court to ensure that the Accused Person understands the consequences of such a plea is heightened.”(emphasis added)

9. In this case, the record shows that the charge was read in Kiswahili language that the Appellant understands. After Appellant pleaded guilty he was “notwarned of the sentence by the court”. There is therefore no evidence that the appellant was warned about the seriousness of the offence that he was pleading to. In those circumstances, given the seriousness of the charge and the fact that the Court was about to convict and sentence the Accused Person to life imprisonment, it behooved upon the Court to unequivocally warn the Accused Person of the consequences of a guilty plea. This was clearly not done.

10. The mandatory sentence for arson is life imprisonment under section 332(d) of the Act. The Appellant is a first offender. I am alive to the fact that sentencing is at the discretion of the trial court that must be exercised judicially. The trial court with respect did not explain why it found it fit to sentence Appellant to maximum sentence yet he was a first offender and there being evidence that the burnt house was his and was valued at only Kshs. 10,000/-.

Orders

11. In the end, therefore, the court makes the following orders:

(a) The guilty plea entered against the Appellant was not unequivocal and the conviction and the sentence imposed on him are consequently set aside.

(b) The Appellant has served over 4 years’ imprisonment and it would not be in the interest of justice to order a retrial.

(c) It is therefore hereby orderedthat Appellant shall be released and set free forthwith.

DATED AND DELIVERED IN BUNGOMA THIS 09thDAY August, 2019

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant- Brendah

Appellant - Present

For the State - Mr. Akello