[2022] KEHC 10074 (KLR)

Lwangu v Republic (Criminal (Traffic) Appeal E018 of 2021) [2022] KEHC 10074 (KLR) (20 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10074 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal (Traffic) Appeal E018 of 2021

GV Odunga, J

July 20, 2022

Between

Hedrick Lwangu

Appellant

and

Republic

Respondent

(Being an appeal from the Judgement delivered on 15th February 2021 in CMCC Traffic Case Number E074 of 2021 by Honourable H. Onkwani, Principal Magistrate in Mavoko)

Judgment

1. The Appellant, Hedrick Lwangu, was charged with three (3) counts. In count 1, the Appellant was charged with operating a school vehicle on the road without a road service licence contrary to section 26(1) as read with section 30(7) of the National Transport and Safety Authority Act No. 33 of 2012. The particulars of the offence were that on the 25th day of January, 2021 at about 0700 hours along Mombasa - Nairobi road within Machakos County, being a driver of a school Vehicle registration number KCJ 431V make Toyota Hiace van, he did operate the said school vehicle without a valid road license issued by the National Transport and Safety Authority for the carriage of school going children.

2. In count II, he was charged with driving a motor vehicle on the road whilst under the influence of alcohol contrary to section 44(1) of the Traffic Act, cap 403, Laws of Kenya. The particulars were that on the 25th day of January, 2021 at about 0700 hours along Mombasa-Nairobi Road within Machakos County, being a driver of a school Vehicle registration number KCJ 431V make Toyota Hiace van, he drove the said school van whilst under the influence of alcohol reading 0. 542mg/L of breath on the breathalyzer thus exceeding the required limit of 0. 00mg/L of breath for school vehicle drivers by 0. 542mg/L.

3. In count III, he was charged with driving a commercial vehicle on the road without an inspection sticker contrary to section 12A (3) as read with section 29 of the Traffic Act, cap 403, Laws of Kenya. The particulars were that on the 25th day of January, 2021 at about 0700 hours along Mombasa-Nairobi Road within Machakos County, being a driver of a school Vehicle registration number KCJ 431V make Toyota Hiace van, he drove the said school van without a valid inspection sticker. (Expired with effect from July 20, 2020)

4. The Appellant, on January 25, 2021initially pleaded guilty to count I and III but pleaded not guilty to count II. However, on February 15, 2021, he changed this plea to guilty. He was therefore convicted on his own plea of guilty in respect of all the three counts.

5. In mitigation, he was remorseful and sought the leniency of the court. The trial court in sentencing noted that he was driving a school van meant for transporting school children and sentenced him to pay a fine of Kshs. 200,000 in default to serve one year’s imprisonment in count 1, pay a fine of Kshs 10,000 in default to serve three (3) months imprisonment in count II and to pay a fine of Kshs 50,000 in default to serve one year imprisonment in count III. In addition, the Appellant was disqualified from obtaining or holding a driving licence for a period of 12 months. The sentences were directed to run concurrently.

6. Dissatisfied by this judgement, the Appellant lodged this appeal in which he challenges both his conviction and sentence on the following grounds;a.The Learned Trial Magistrate erred in law and in fact by convicting and sentencing the accused based on defective charges.b.The Learned Trial Magistrate erred in law and in fact by convicting the accused based on charges not supported by facts.c.The Learned Trial Magistrate erred in law and in fact by sentencing the accused and imposing fines exceeding those prescribed under law.d.The Learned Trial Magistrate erred in law and in fact by failing to consider the mitigation of the appellant.e.The Learned Trial Magistrate erred in law and in fact by misapprehending wrong legal principles and drawing wrong inferences to the prejudice of the appellant.

7. It was submitted on behalf of the appellant that the sentence imposed in count I is harsh and excessive. According to the Appellant, though the charge was for carrying children without the particular licence to carry school children, the subject motor vehicle had a valid road licence save for the fact that it was not particularly licenced to carry children. It was therefore submitted that the amount of Kshs. 200,000/= imposed as fine was excessively high. According to the Appellant, trial magistrate, despite mitigation by the accused, imposed the maximum sentence of imprisonment under the said Section 30(7), being one year. The Court was urged to exercise its unfettered jurisdiction and reduce both the fine and imprisonment imposed by the trial court under Count one.

8. On count II, while he applauded the sentence he felt that the directive barring him from taking a licence for a period of twelve months was excessively harsh as this was his source of income.

9. With regard to count III, he submitted that the sentence under Section 29 of the of the Traffic Act, cap 403, Laws of Kenya prescribes for a maximum fine of Kshs. 10,000 or imprisonment for a maximum of three months or both and the sentence of Kshs. 50,000 fine in default one year imprisonment was illegal.

10. The Respondent did not submit in this appeal.

Determination 11. I have considered this appeal which is substantially against the sentence. Section 348 of the Criminal Procedure Code bars appeals from subordinate courts where an accused was convicted upon a plea of guilty except on the extent and legality of sentence by providing 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 and legality of the sentence.

12. In the case of Olel vs. 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.”

13. It follows that the appellant is, by virtue of this section, and authority, barred from challenging the conviction and his only recourse was to challenge the extent or legality of the sentence imposed on him by the trial court.

14. That bar, in my view only operates where the plea is unequivocal. Accordingly, that bar does not bar the Court from inquiring as to whether a prima facie 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 in John Shikoli Atsunzi vs. Republic [2016] eKLR that that would make the conviction unlawful thus justifying the court in addressing itself on the issue of conviction.

15. In Alexander Lukoye Malika vs. Republic [2015] eKLR the Court of Appeal identified the situations in which a conviction based on a plea of guilty can be interfered with 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.”

16. I have considered the material placed before me. The manner of recording of a plea is provided for in section 207(1) and (2) of the Criminal Procedure Code provides as hereunder:(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.

17. The manner of recording plea of guilty was dealt with in Ombena vs. Republic [1981] eKLR where the Court of Appeal held that:“In Adan v Republic [1973] EA445, the Court of Appeal laid down in the simplest and plainest terms the manner in which pleas of guilty should be recorded and the steps which should be followed. It is appropriate to set out the holding in full —‘Held:(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 an 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 with 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.”In this case it is not certain that the prosecutor stated the facts, or that the appellants were given an opportunity to dispute or explain the facts or to add any relevant facts. The bald record that the prosecutor said “Facts are as per charge sheets”, and that the charge was read over and explained a second time, is not in our view sufficient to enable us to be satisfied that the pleas were unequivocal. In the Adan case the court said, at p 447:“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.”We are aware of how busy magistrates and judges are in this part of the world and it may be that the record does not do full justice to the proceedings as they were conducted. However we have to judge by the record as it is. In this case we are not satisfied that the pleas of the appellants can be safely accepted as unequivocal pleas of guilty, or that the convictions can safely be allowed to stand.”

18. It is therefore clear that the charge, the particulars and the facts must be read to the accused in his language or in a language he understands. This is my understanding of the decision in K N vs. Republic [2016] eKLR, where it was held that:“The procedure for taking plea follows a well-beaten path. The leading case, Adan v R (1973) EA445 emphasises that an accused person must not only understand the language used at his trial but also appreciate all the essential ingredients of the offence charged before his plea can be taken to be unequivocal. This need for taking the greatest care where the accused admits the offence was explained many years before the decision in Adan (supra) in Hando S/o Akunaay v Rex (1951) 18 EACA 307 as follows;‘…before convicting on any such plea, it is highly desirable not only that every constituent of the charge should be explained to the accused, but that he should be required to admit or deny every such constituent.’Where an accused person who has been called upon to plead under section 207 of the Criminal Procedure Code in the subordinate court admits the charge, the proviso to subsection (2) requires the prosecution to outline the facts upon which the charge is founded. The truth or otherwise of the charge is a combination of three things, the charge, the particulars of the offence contained in the charge sheet or information, as the case may be, as well as the facts outlined where the accused pleads guilty. The facts therefore are as important part of a plea as the charge itself. The nature and elements of the offence in totality must be understood by the accused and the trial court must be satisfied about this before accepting them as true. We think the court should also explain to the accused person the natural consequence of pleading guilty, the conviction and likely sentence. In outlining the facts the prosecution’s role is to present the evidence that could have been proven if the case had gone to trial. Therefore for the court to accept a plea of guilty, the facts alleged by the prosecution must be accepted by the accused as accurate and they must, in turn be sufficient in law to constitute and disclose the offence charged, the proof of which must be beyond any reasonable doubt. It is therefore incumbent upon the prosecution, in proof of the charge, to present the exhibits that they would have relied on at the trial.”

19. I associate myself with the opinion of the Court of Appeal in Elijah Njihia Wakianda vs. Republic [2016] eKLR that:“Criminal proceedings have serious implications on the life and liberty of persons accused depending on the offence charged. The criminal process is designed for the forensic interrogation and determination of guilt with various rights and safeguards built into it to ensure that only the guilty get to be convicted. Thus the heart of a criminal trial is the tendering of evidence by the prosecution in an attempt to establish the charge. That evidence is given on oath and tested at trial through the process of cross-examination. The accused person essentially gets the opportunity, if he chooses to, to confront and challenge his accusers. He also gets to make submissions and to persuade the court that he is not guilty of the matters alleged. He is also at liberty to testify on his behalf and call evidence on the matters alleged against him. He, of course, has no burden of any kind, the same resting on the prosecution to prove the charge against him beyond reasonable doubt. Given all the safeguards available to an accused person through the process of trial, the entry of a plea of guilty presents a rare absolute capitulation; a throwing in of the towel and a giving of a walkover to the prosecution and often at great cost. A conviction comes with its consequences of varying gravity. Thus it is that the courts, at any rate appellate courts, would not accept a plea of guilty unless satisfied that the same has been entered consciously, freely and in clear and unambiguous terms.”

20. In this case, the record reveals that the charges were read over to the Appellant and after he pleaded guilty to the same , the prosecution simply stated that the facts were as per charge sheet and then proceeded to produce the Alcohol Ticket. Since the facts were never read over to him, the appellant did not reply to the facts.

21. In this appeal, it is submitted that the motor vehicle in question did have a road service licence and that what it did not have was the licence to carry school going children. However, the charge was that it did not have a road service licence. The particulars, as they appeared in the charge sheet were however not clear. While the offence was that of operating a school vehicle on the road without a road service licence the particulars of the offence stated that he was operating the vehicle without a valid road license issued by the National Transport and Safety Authority for the carriage of school going children. This matter would have been clarified had the facts been read over to the appellant. He might have even changed his plea upon hearing the facts of the offence. This was never done.

22. I associate myself with Makau, J in Hilda Atieno vs. Republic[2016] eKLR where he held that:“The Court erred in not having facts stated in details for the appellant to know the nature of the offence, the ingredients constituting of the offence charged before her response could be recorded. In the instant case, no facts were given as charge sheet do not constitute facts of the offence and it is wrong for the prosecution to state “facts are as per charge sheet.” The appellant in the instant case was not given an opportunity to dispute or challenge the “facts are as per charge sheet”.

23. It is clear that the manner in which the proceedings were conducted did not strictly comply with section 207(1) and (2) of the Criminal Procedure Code. In the premises the appellant’s plea cannot be said to have been unequivocal.

24. What is the course available to the Court in such circumstances? In other words, should the Court order a retrial? The Court of Appeal in the case of Ahmed Sumar vs. R(1964) EALR 483 offered the following guidance:“...in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered;......”

25. The Court of Appeal likewise had the following to say in the case of Samuel Wahini Ngugi vs. R [2012] eKLR: -“The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar vs. R (1964) EALR 483, the predecessor to this Court stated as concerns the issue of retrial in criminal cases as follows:‘It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered…In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person’That decision was echoed in the case of Lolimo Ekimat vs. R, Criminal Appeal No. 151 of 2004(unreported) when this Court stated as follows:‘…the principle that has been accepted to courts is that each case must depend on the particular facts and circumstances of that each case but an order for the retrial should only be made where interests of justice require it.’”

26. In Muiruri –vs- Republic(2003), KLR, 552 and Mwangi v Republic (1983) KLR 522 and Fatehali Maji –vs- Republic(1966) EA, 343 the view expressed was that: -“Although some factors may be considered, such as illegalities or defects in the original trial, the length of time elapsed since the arrest and arraignment of the appellant; whether mistakes leading to the quashing of the conviction were entirely the prosecution’s making or not; whether on a proper consideration of the admissible or potentially admissible evidence a conviction might result from a retrial; at the end of the day, each case must depend on its own particular facts and circumstances and an order for a retrial should only be made where the interests of justice requires it.”

27. Makhandia J. (as he then was) in the case of Issa Abdi Mohammed vs. Republic [2006] eKLR opined that: -“An order for retrial would have been most appropriate in the circumstances of this case. To do so however, in the circumstances of this case would cause irreparable prejudice to the appellant since the prosecution may have become wiser and would wish to plug the loopholes already alluded to in this judgment. In the result there is only one channel left to this court and that is to allow the appeal, quash the conviction and set aside the sentence. The appellant may be set at liberty forthwith unless otherwise held on a lawful warrant.”

28. In this case the appellant paid the fine and was released. However, the period for which he was suspended from holding a driving licence has lapsed. To subject him to a retrial would have the effect of exposing him to double jeopardy. Accordingly, I set aside his conviction, quash the sentence and in these unique circumstances, he is set at liberty forthwith unless otherwise lawfully held. Let the fine paid be refunded to him.

29. It is so ordered.

JUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 20TH DAY OF JULY, 2022. G V ODUNGAJUDGEIn the absence of the partiesCA Kevin