[2017] KEHC 3020 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MARSABIT

CRIMINAL APPEAL NO. 5 & 6 OF 2017

KONSO GUYO DIDOLE ………………………...………………… APPELLANTS

ABDULLAHI SALLA HUSSEIN

VERSUS

REPUBLIC ……………………………………………………….RESPONDENT

JUDGEMENT

The two appellants were charged with the offence of attempted robbery with violence contrary to section 297(2) of the Penal Code. The particulars of the offence were that the appellants on the 31st day of May, 2017 at Darib Gombo, Marsabit Central sub-county, within Marsabit county jointly with others not before court while armed with a firearm and Rungus, with intent to steal money from Jarson Duba Galchu at and immediately after the time of attempted robbery wounded the said Jarson Duba.

The appellants pleaded guilty to the charge and were each sentenced to suffer death. The grounds of appeal are that:-

1. The trial Court did not observe the provisions of Section 207 of the Criminal Procedure Code.

2. The trial Court failed to promptly inform the appellants of the maximum sentence prescribed yet there was a possibility of substantial injustice being occasioned.

3. The trial Court failed to inform the appellants of their right got legal representation under Article 50(2)(G) of the Constitution.

4. The trial Court erred in law and fact by sentencing the appellants to death without exploring other avencies of punishment.

5. The trial Court erred by failing to confirm the appellants’ mental soundness.

6. The learned trial court failed to comply with the provisions of Section 169 of the Criminal Procedure Code.

Mr. Kiogora appeared for both appellants Counsel submit that the appellants were not told that the offence is punishable by death. The trial court did not inform or caution the appellants that if they pleaded guilty they were going to be sentenced to death. Counsel further contend that the appellants did not understand the charges. The trial Court did not inform the appellants that they were entitled to an advocate at the state’s expense. Counsel rely on the case of ADAN V REPUBLIC, 1973, 445. It is also submitted that other forms of punishment are available.

Mr. Chirchir, prosecution Counsel, opposed the appeal. Counsel submit that Section 348 of the Criminal Procedure Code is clear on a plea of guilty. Article 50 is not mandatory. The sentence is legal as it is the only sentence. The trial Court fully complied with the law.

According to the charge sheet the offence was committed on 31st May, 2017. The facts of the case are as follows:

On the morning of 30. 5.2017 accused persons and other not before court while armed with guns and weapons entered the house of Jarson Duba. This was at 4. 00am when Jarson had just woken up for prayers. The accused person demanded money from Jarson Duba. He told them that he did not have.

An accomplice namely Dika who was armed with a gun fired a shot aiming at complainant. The bullet caught the left hand of accused 1. The complainant screamed and the accused person ran to different directions.

Accused 1 ran away while bleeding. A report was made at Police Station at 7. 00am. Police Officers went to the scene and followed the blood drops to the house of accused.

1. they found a blood stained pink jacket.

On 31. 5.2017 Police Officers got information that accused 1 was hiding at manyatta Soko Moko at the house of his brother. Police Officers went to that house and found accused 1. He was wearing a blood stained black trouser. Police officers also got information where accused 2 was hiding at Dirib Kombo. They went to where they were directed and arrested accused 2. They are today charged. The jacket and trouser belonging to accused 1 are here, I produce them as exhibit.

The main issue for determination is whether the plea was unequivocal and whether the conviction and sentence is proper. The facts of the case indicate that the incident occurred at about 4. 00am on 30. 5.2017. At times the charge sheet would indicate the date of the offence as the night of 30th and 31st May, 2017. The appellants were arrested the following morning on 31. 5.2017. The plea was taken on 2. 6.2017.

The record of the trial Court show that each of the two appellants stated that they understand Kiswahili. The original record of the trial Court indicate that the charge was read over to the appellants in Kiswahili by the Court assistant, Josephine and each accused responded to the charge by stating that the charge was true.

The facts were read over to the appellants. The language is not indicated but it can be presumed that the facts were read in English language by the prosecution counsel and interpreted in Kiswahili by Josephine, the court assistant. The appellants responded by stating that the fact were correct. The appellants were subsequently convicted on their own guilty pleas. They were allowed to mitigate. The 1st appellant stated as follows:-

“I pray for leniency. I admit I committed the offence but promise not to repeat it. I have a family to fend for.”

The second appellant had this to say in mitigation

“I admit the offence. I pray for mercy. I have a young family.”

From the record of the trial Court, it is clear that the appellant were properly communicating with the court. The issue of language does not arise. They mitigated after the conviction and the trial Court was able to capture their mitigation. The obvious conclusion is that they were not speaking in their mother tongues as it is not indicated that the trial magistrate understand the appellants mother tongue. They told the court that they understand Kiswahili and they mitigated in Kiswahili. This leads to the logical conclusion that they were fully aware of the proceedings and fully participated in the taking of the plea.

Counsel for the appellants rely on the case of ADAN V REPUBLIC [1973] E.A. 445In that case, the Court of Appeal of East Africalaid down the steps to be taken where there is a guilty plea as follows:

(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 in admission, a plea of guilty should be recorded;

(iii) 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;

(iv)If the accused does not agree the facts or raises any question of his guilt his reply must be recorded and change of plea entered.

(v)If there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused’s reply should be recorded.

The Court in that case at pages 446-447 observed 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 agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of plea to “not guilty” and proceed to hold a trial. If the accused does not deny the alleged 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 reply must, of course be recorded.

The statement of facts serves two purposes: it enables the magistrate to satisfy himself that the plea of guilty was really unequivocal and that the accused has no defence and it gives the magistrate the basic material on which to assess sentence. It not infrequently happens that an accused, after hearing the statement of facts, disputes some particular fact or alleges some additional fact, showing that he did not really understand the position when he pleaded guilty: it is for this reason that it is essential for the statement of facts to precede the conviction.

In the case of OMBENA V REPUBLIC, (C.A) [1981] KLR, 450, it was held that it is good practice for the trial Court to record a plea on each Count separately so that the accused can understand and apply his mind on each Count. It was further held that whether the plea was unequivocal or not depends on the circumstances of each case and that the statements of facts must be explained to the accused.

In the case of WAINAINA V REPUBLIC [1986] KLR 616, the appellant was charged and convicted of the offence of causing death by dangerous driving. He pleaded guilty to all the seven counts and was sentenced to five years imprisonment. On a second appeal to the Court of Appeal, the court stated as follows –

“The narration and interpretation of the facts of the alleged offence before the entry of conviction and asking the appellant if he agreed with the facts in evidence of the precaution which the trial magistrate adopted to ensure that the appellant fully understood the charges before pleading. There is no evidence that the appellant disputed the facts or sought to assert additional facts……”

Section 207 of the Criminal Procedure Code (Cap 75) states as follows:

(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 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.

(3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided.

(4) If the accused person refused to plead, the court shall order a plea of “not guilty” to be entered for him.

(5) If the accused pleads –

(a) that he has been previously convicted or acquitted on the same facts of the same offence; or

(b) That he has obtained the President’s pardon for his offence,

The court shall first try whether the plea is true or not, and if the court holds that the evidence adduced in support of the plea does not sustain it, or if it finds that the plea is false, the accused shall be required to plead to the charge.

Counsel for the appellants cited Sections 207 and 169 of the Criminal Procedure Code. Section 169 deals with the contents of a Judgment. The appellants were convicted on their own guilty pleas. No Judgment was written by the trial court.

Article 50 (2) (g) and (h) of the Constitution provide that:

Every accused person has a right to a fair trial which include: –

(g) To choose, and be represented by, an advocate and to be informed of this right promptly.

(h) To have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

The circumstances of this case are that the appellants pleaded guilty to the charge. They understood the allegations against them and opted to admit having committed the offence. They did not deny the charge. The circumstances of the case did not call for a situation where the trial court had to explain to the appellant their constitutional rights under Article 50(2)(g) and (h). It was not necessary for the appellants to seek to exercise their right to be represented by an advocate. Since the appellants pleaded guilty, there was no anticipation that substantial injustice would have occurred. The only remaining procedure after the appellants pleaded guilty was for them to mitigate. The appellants made proper mitigation that was recorded by the Court. There was no violation of the appellants’ Constitutional rights.

The next issue relates to the sentence imposed by the trial Court Section 297(2) is a replica of Section 296(2). There is no difference between the offence of robbery with violence and that of attempted robbery with violence. This is the only offence which provides for the same sentence for both the full act of robbery with violence and the unfulfilled act of attempted robbery with violence.

Section 388 of the Penal Code states as follows:-

(1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.

(2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.

(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

Similarly, Section 389 of the Penal Code provides as follows:

Any person who attempts to commit a felony or a misdemeanour is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years.

The sentence for attempted robbery with violence is provided for under Section 297(2) of the Penal Code. Section 389 of the Penal Code further provides that “if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years.”

What is the impact of the above words under Section 389 of the Penal Code. Section 220 provides for the offence of attempted murder. Anyone convicted of the offence of attempted murder is liable to imprisonment for life.He can therefore be sentenced to a term in prison. Under Section 333, the punishment for attempted arson is a maximum of 14 years imprisonment. The offence of attempted suicide is described as a misdemeanor Under section 226 of the Penal Code. The person who attempts to kill himself can therefore be sentenced to a term less than three years imprisonment. An attempt to destroy a property by explosives Under Section 340 of the Penal Code carries a maximum sentence of 14 years. Section 337 provides for the offence of casting away a vessel. This involves destroying a vessel. The maximum sentence is 7 years imprisonment. All the above are incomplete offences.

Turning back to Section 389, it is clear that the section provides for two types of punishment for attempts to commit offences. These are:-

1. One half of punishment of the punishment prescribed for the full offence.

2. If the offence is punishable by death or life imprisonment, a maximum of seven years imprisonment.

The offence of murder and robbery with violence is punishable by death. The same applies to the offence of treason Under Section 40 of the Penal Code. The offence of treason seems to encompass attempts to commit treason. If the person who commits treasonable acts does not owe allegiance to Kenya, he is liable to life imprisonment under Section 43 of the Penal Code. It is not clear as to why Section 297(2) provides for death sentence to the inchoate offence of attempted robbery with violence. The sentence is not proportionate to the offence. An attempt means the offence was not completed. In the current case, nothing was taken away from the victim. Indeed the person who was armed was not arrested. The first appellant was shot and sustained injuries during the incident. The first appellant was one of the robbers. He was shot, nothing was stolen, pleaded guilty and was sentenced to death. Although the charge sheet indicate that the complainant was injured, that is not the case. It is the first appellant who was injured.

There is the inferred presumption that a robbery with violence offender cannot be reformed. One convicted of manslaughter can be sentenced to a term in prison. One convicted of attempted murder can also be convicted to a term in prison. One convicted of attempted robbery with violence is sentenced to death. Where life would have been lost in the case of attempted murder carries less punishment than where a property whose value could be less than Ksh.1000 carries the death sentence.

The Courts should resort to the provisions of Section 389. My view is that although the section states that if no other punishment is providedbut also states that if the attempted offence is punishable by death or life imprisonment. It cannot be held that so long as the punishment of attempted robbery with violence is provided Under Section 279(2) the courts should not consider section 389. When the law is ambiguous, the Courts should be at liberty to utilize either Section depending on the circumstances of each case.

The issue of attempted robbery with violence was dealt with by the Court of Appeal.

In the case of DAVID MWANGI MUGO V REPUBLIC (2011)eKLR the Court of appeal observed as follows:

“The submission on the legality of it is that section 297(2) of the Penal Code which prescribes the sentence of death, is in conflict with section 389 of the same Code which requires that in offences of attempt to commit a felony, the sentence should not exceed seven years’ imprisonment. Section 389 states as follows:

“Any person who attempts to commit a felony or a misdemeanour is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years.”

And section 297(2) provides

If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the assault, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

A three Judge bench of the High Court has also dealt with this issue in Nairobi Petition No.618 of 2010, Joseph Kaberia Kahinga and 11 others V Attorney General [2016]eKLR. The High Court made the following observations:

We find and hold that the Petitioners have a case when they argue that the sub-sections of Section 297 of the Penal Code are ambiguous and not distinct enough to enable a person charged with either offences to prepare and defend himself due to lack of clarity on what constitutes the ingredients of the charge. Article 50(2) of the Constitution proclaims what constitutes “a fair trial” when a person is charged with a criminal offence. Article 50(2)(b) states that:

“Every accused person has the right to a fair trial, which includes the right to be informed of the charge, with sufficient detail to answer it.”

From the argument advanced by the Petitioners, it is apparent that a person charged under Section 297(2) of the Penal Code faces prejudice because he can, as is the case of some of the Petitioners, be convicted and sentenced to death where the same facts and circumstances may have constituted facts which supported the charge for the lesser offence of attempted robbery with violence contrary to Section 297(1) of the Penal Code.

Generally, inchoate offences attract less severe punishment than completed offences. That is the general trend in the Penal Code. For instance, under Section 220 of the Penal Code a person convicted of the charge of attempted murder is liable to be sentenced to serve a maximum term of life imprisonment while, if a person is charged with committing murder under Section 203 of the Penal Code, the sentence is death.

The High Court in the Kaberia case made several recommendations. One of its holding reads as follows:

We hereby declare that section 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code do not meet the constitutional threshold of setting out in sufficient precision, distinctively clarifying and differentiating the degrees of aggravation of the offence of robbery and attempted robbery with such particularity as to enable those accused to adequately answer to the charges and prepare their defences.

Given the above scenario, I do find that the plea by the appellants was unequivocal. They pleaded guilty to the charge and the trial court cannot be faulted for the guilty plea. On the issue of sentence, I do find that the death sentence is not proportionate to the offence. I will utilize Section 389 of the Penal Code as the proper section providing for punishment where the complete offence is punishable by death. This will enable the appellants to benefit from the least severe punishment in view of the ambiguity of the law in this area of attempted robbery with violence. The death sentence meted out to the appellants is hereby set aside and replaced with seven (7) years imprisonment from the date of conviction.

In the end, the appeal on conviction is disallowed. The death sentence is set aside and replaced with seven (7) years imprisonment.

Dated, Signed and Delivered at Marsabit this 11thday of October 2017.

S. CHITEMBWE

JUDGE