[2022] KEHC 10115 (KLR)

Kirimi v Republic (Criminal Appeal E144 of 2021) [2022] KEHC 10115 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10115 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E144 of 2021

TW Cherere, J

May 19, 2022

Between

Joseph Kirimi

Appellant

and

Republic

Respondent

(An appeal from the conviction and sentence in Criminal Case No.669 of 2021 in the Principal Magistrate’s Court at Tigania by Hon. P.M.Wechuli (SRM) on 12. 08. 2021)

Judgment

1. On February 2, 2015, the appellant herein Kingstone Peter Mabonga pleaded guilty to a charge of grievous harm contrary to section 234 of the Penal Code cap 63 Laws of Kenya. The particulars of the offence were that:On May 29, 2021 at Kianjai village, Kianjai Location in Tigania West Sub-County within Meru County did grievous harm to GEOFFREY MUTWIRI

2. Appellant pleaded guilty and was sentenced to serve 50 years’ imprisonment.

The Appeal 3. Aggrieved by the conviction and sentence, appellant lodged the instant appeal on August 18, 2021 mainly on the ground that the plea of guilt was not unequivocal.

4. Appellant chose to wholly rely on the grounds of appeal and written submission filed on April 20, 2022. The state through Ms Mwaniki, learned Principal Prosection Counsel, opposed the appeal on the ground that the plea of guilty was 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. 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.

7. 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)

8. In this case, the record demonstrates appellant was initially charged with assault causing actual bodily harm contrary to section 251 of the Penal Code to which he pleaded not guilty on June 7, 2021 after the charge was read to him in Kiswahili which he understands.

9. Accused was remanded in custody until July 28, 2021 when he was charged with causing grievous harm contrary to section 234 of the Penal Code Cap 63 Laws of Kenya. The charge was read in Kiswahili which he understands and he stated as follows:It is true.

10. After appellant was warned of the seriousness of the offence, the case was on July 28, 2021 adjourned to August 12, 2021. On that date, the facts were read out to appellant again in Kiswahili which he understands and he responded as follows:I accept I beat him. I did not know he got seriously injured. Yes, I beat him.

11. The court finding the charge admitted convicted the appellant and sentenced him to serve 50 years’ imprisonment.

12. I have considered the procedure for taking plea as was set out by the Court of Appeal in the case of Adan v Republic [1973] EA LR 445, and reiterated in the case of Kariuki vs Republic [1954] KLR 809 and I find that the appellant understood the charge and its consequences before he admitted the charge. The plea of guilty was therefore unequivocal.

13. Section 348 of the Criminal Procedure Code provides that no appeal lies against a conviction on an accused’s own plea of guilt. That section provides as follows: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.

14. Concerning the sentence, section 234 of the Act provides that:Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.

15. The words “shall be liable” in the context of section 234 of theActhas the interpretation that unless a contrary intention appears, life imprisonment is the maximum penalty. This principle is contained in section 66 (1) of the Interpretation and General Provisions Act (cap 2 Laws of Kenya) provides that:“Where in a written law a penalty is prescribed for an offence under that written law, that provision shall, unless a contrary intention appears, mean that the offence shall be punishable by a penalty not exceeding the penalty prescribed”.

16. The second observation is that the principle of law in section 66 aforesaid is entrenched in section 26 of the Penal Code which expressly authorizes a court to sentence the offender to a shorter term than the maximum provided by any written law and further authorizes the court to pass a sentence of a fine in addition to or in substitution for imprisonment except where the law provides for a minimum sentence of imprisonment.

17. In particular, section 26 (2) and (3) of the Penal Code provides:“(2)Save as may be expressly provided by the law under which the offence concerned in punishable, a person liable to imprisonment for life or any other shorter period may be sentenced to any shorter term.(3)A person liable to imprisonment for an offence may be sentenced to a fine in addition to or in substitution for imprisonment”.

18. Whereas there is no dispute that complainant was seriously injured on the head and was treated as an inpatient for 65 days, appellant is a first offender. Generally, where a person is said to be a first time offender, the court usually imposes a lesser sentence as opposed to if the appellant was a repeat offender. This view is subject to the discretion of the court as other factors such as aggravating circumstances are put into consideration in deciding the appropriate sentence in the circumstances of each case.

19. The trial court in its discretion imposed a lawful 50-year sentence. Complainant in mitigation expressed remorse for his actions. A sentence of 50 years for a 33-year-old such as the appellant means he will spend most of his life in incarceration and is equivalent to a life sentence.

20. Consequently, I am minded to interfere with the sentence imposed on the appellant and hereby issue the following orders:a. The guilty plea entered against the appellant was unequivocal.b. Conviction is upheldc. The 50 years’ sentence is set aside and substituted with a 10 years’ term of imprisonment from June 4, 2021 when appellant was arrested.

DATED THIS 19TH DAY OF MAY 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAppellant - PresentFor the State - Ms. Mwaniki (PPC)