[2022] KEHC 2974 (KLR)

Maru v Prosecutor/ODPP (Criminal Appeal 003 of 2021) [2022] KEHC 2974 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 2974 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Criminal Appeal 003 of 2021

RN Nyakundi, J

May 19, 2022

Between

Kelvin Maru

Appellant

and

Prosecutor/ODPP

Respondent

(Being an Appeal from the conviction and sentence of Hon. D.A Ocharo (PM) dated and delivered on the 14th day of January 2021 in Kapsabet SPMCR no. E057 of 2021)

Judgment

1. The appellant herein was charged with the offence of having or conveying suspected stolen property contrary to section 323 of the Penal Code.

2. The particulars of the offence are that on the 11th day of January 2021, at Kabiyet township, Kabiyet, having been detained by PC Rogoncho as a result of the exercise of the power conferred by section 26 if the Criminal Procedure Code, had in his possession a motorcycle registration number KMTZ 792D,make Honda red in colour, chassis number BFOJA3093HS220304, Engine number SDHI52FM13 reasonably suspected to have been stolen or unlawfully obtained.

3. The appellant pleaded guilty on 14th January 2021 and was sentenced to 3 years’ imprisonment on the basis that he was a repeat offender and had been sentenced in Criminal Case no E096/21, 3 months prior to his arraignment for theft of a motorcycle contrary to section 278(a) of the Penal Code.

4. The appellant being displeased with the conviction and sentence of the trial court preferred this appeal on five grounds;

5. That the Learned trial magistrate erred in law and in fact by failing to evaluate the evidence before him thus reaching the erroneous decision

6. That the Learned trial magistrate erred in law and in fact in dismissing the defence which was advanced by the appellant and failing to take cognizance that the explanation given by the appellant in the manner he came into possession of the motorcycle was a reasonable explanation.

7. That the Learned trial magistrate erred in law and in fact by conducting proceedings in a language the appellant did not understand and/or failing to avail the appellant the facility of interpretation in the language of his choice and understanding thus occasioning miscarriage of justice

8. That the Learned trial magistrate erred in law by holding that the appellant was a repeat offender when no records were produced to support the claim

9. That the Learned trial magistrate erred in law and in fact by failing to appreciate the charges facing the accused were defective both in form and substance.

10. The appellant sought to have the sentence and conviction quashed and set aside.

11. The appellants case is that on the evidence produced by the prosecution none established the complainant as the legal owner of the said motorcycle. It was alleged that the appellant borrowed the motorcycle but no evidence was produced to prove the same. The appellant cited the case of Woolmington vs DPP (1935) AC 462 on the burden of proof and submitted that the prosecution shifted its burden on the appellant. that the prosecution should have established that the appellant was not the legal owner. He was not availed an opportunity to explain to the court how he came by the said motorcycle.

12. The phrase ‘ni kweli’ does not amount to an admission. The omission to explain to the accused person all the ingredients of the charge and to ask him how he came into possession of the motorcycle has been held to be fatal. The appellant cited Joseph Khavako & Another vs Republic and submitted that it is a mandatory requirement in criminal trials that every ingredient of the offence alleged to have been committed needs to be proved beyond reasonable doubt.

13. The proceedings show the appellant used Swahili during the plea. There is no evidence on record that the said language was used when reading the facts to the appellant. he cited article 50(m) of the constitution and the case of Wilson Kipchirchir Koskei vs Republic (2019) eKLRand submitted that he was not subjected to a fair trial.

14. The appellant submitted that the charge was defective. Section 278 A should have been read alongside section 268 of the Penal Code which defines the offence of stealing. The absence of cogent evidence supporting the charge renders the same defective. He cited Yongo vs Republic (1983) KLR 319 in support of this submission. he prayed the appeal be allowed.

15. The respondent’s case is that the plea was unequivocal. It is clear that the proceedings took place in English and translation was done in Kiswahili. The appellant had an opportunity of stating whether he was uncomfortable with Swahili language. He clearly understood the language that was used and facts were deferred and read to him on 14th January 2021 therefore he had an opportunity to reflect on his plea and the offence.

16. The appellant was a repeat offender and was sentenced to 3 years in jail which was reasonable considering his previous records. Further, he pled guilty therefore the prosecution could not test the veracity of the evidence of witnesses.

17. The prosecution cited Alexander Lukoya Maliku v R (2015) eKLRon when the Court of Appeal can interfere with a plea of guilty and submitted that the conviction and sentence were proper therefore the appeal be disallowed.

18. Upon perusing the pleadings and submissions herein I have identified the following issues for determination;i.Whether the charge was defectiveii.Whether the appellant was accorded a fair trial

Whether the Court can overturn asentence and conviction arising from aplea of guilty 19. I note that the appellant pleaded guilty. Therefore, it is imperative to set out the parameters within which a court can overturn a sentence and conviction arising from a plea of guilty.

20. Section 348 of the CPC states: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.

21. In Alexander Lukoye Malika v Republic [2015] eKLRthe 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.

22. From the record it is stated that the substance and every element of the charge was stated to the accused.

23. Section 323 of the Penal Code provides;Any person who has been detained as a result of the exercise of the powers conferred by section 26 of the Criminal Procedure Code and is charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same, is guilty of a misdemeanour.

24. The need for the court to be cautious when accepting a plea of guilty from an undefended accused person was stressed by Joel Ngugi, J in Simon Gitau Kinene v Republic[2016] eKLRwhen he stated that:Finally, courts have always held that extra caution needs to be taken in the case of undefended defendants who plead guilty. I have previously held that where an Accused Person is unrepresented, the duty of the Court to ensure the plea of guilty is unequivocal is heightened. In Paulo Malimi Mbusi v R Kiambu Crim. App. No. 8 of 2016 (unreported) this is what I said and I find it relevant here: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. Here, the Court took no extra effort to ensure this. In these circumstances, given the seriousness of the charge the Court was about to convict and sentence the Accused Person for, it behooved the Court to warn the Accused Person of the consequences of a guilty plea.

25. The appellant, being unrepresented, was in no position to understand the consequences of pleading guilty to a misdemeanour. From the perusal of the court record I am convinced that the trial court did not explain the consequence of pleading guilty to the accused person. In the premises I find that this court can overturn the sentence and conviction of the accused person herein.

Whether the Appellant was proven to be a repeat offender 26. The court sentenced the appellant on the basis that he was a repeat offender. I adopt the sentiments of Lesiit J, in Abdi Ahmed v Republic Meru HCCRA No. 87 of 2010 (Unreported) cited in approval in Stephen Mangera Marwa v Republic[2014] eKLR where she stated;With due respect to the learned magistrate the way to receive a previous record of an accused person was not followed. In such a case the prosecution is required to adduce proof of previous conviction by producing a certificate from the Central Bureau of Criminal Records as proof of the conviction. In the bare minimum the prosecution could provide the case umber and the court in which the accused person was convicted and if possible cause it to be availed to the court. In either case the court is expected to put the record to the accused person and require him to admit or deny the same. In the instant case neither a certificate of previous records nor a conviction nor the court and criminal case number in which the Appellant was convicted were given. The prosecution did not therefore establish that the Appellant was ever convicted of any offence prior to the one on record.”

27. I find that the trial court erred in finding that the accused person was a repeat offender.

Whether the charge was Defective 28. In the case of Isaac Omambia v Republic, [1995] eKLR the court considered the ingredients necessary in a charge sheet and stated as follows:“In this regard, it is pertinent to draw attention to the following provisions of S. 134 of the Criminal Procedure Code which makes particulars of a charge an integral part of the charge: Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence.”

29. The Court of Appeal in Yongo vs Republic[1983] KLR, 319 did hold that a charge that is not disclosed by evidence is defective and stated as follows in this regard:In our opinion a charge is defective under Section 214(1) of the Criminal Procedure Codewhere:(a)it does not accord with the evidence in committal proceedings because of inaccuracies or deficiencies in the charge or because it charges offences in the charge not disclosed in such evidence or fails to charge an offence which the evidence in the committal proceedings discloses; or(b)it does not, for such reasons, accord with the evidence given at the trial; or(c)it gives a misdescription of the alleged offence in its particulars.

30. A perusal of the charge sheet determined that it contained the statement of the specific offence and the particulars that are necessary for giving reasonable information as to the nature of the offence he had been accused of. Given that the appellant pleaded guilty the court did not have an opportunity to assess the evidence therefore the charge sheet’s defectiveness based on the evidence that was to be laid before the court. I therefore find that the charge sheet was not defective.

Whether the sentence and conviction should be overturned 31. It is evident that the trial was marred with irregularities. It is not possible to establish whether the accused knew the consequences of pleading guilty to the offence. Regardless of the language the charge is read in, it does not afford the accused person any details with regards to the consequence of a guilty plea.

32. As per the finding in Wanjema v R [1971] EA 493 The imposition of a sentence is an exercise of judicial discretion hence the appellate court will only interfere where the trial court failed to take into account a relevant factor, took into account an irrelevant factor or where in all circumstances the sentence was harsh and excessive.

33. The appellant was sentenced to 3 years on the basis that he was a repeat offender, which we have determined was not proven. further, given that section 323 of the Penal Codedoes not specifically provide a punishment for the offence, the court shall then look to section 36 of the Penal Code which provides;When in this Code no punishment is specially provided for any misdemeanour, it shall be punishable with imprisonment for a term not exceeding two years or with a fine, or with both.

34. I find that the sentence was excessive and exceeded the statutory provision.

35. Further, the court needs to consider the elements of the offence the accused was found guilty of. In Charo v. R. [1982] KLR 1 Muli J., as he then was, summarized the ingredients of the offence under section 323 of thePenal Code thus: -The ingredients of a charge under Section 323 of the Penal Code are that a person must have been detained pursuant to Section 26 of the Criminal Procedure Code (Cap 75); the person must be charged with having in his possession or conveying anything reasonably suspected of having been stolen or unlawfully obtained; and the person must have failed to give an account to the satisfaction of the court of how he came by the thing so suspects.’

36. The court further held;It is fatal omission not to explain to the appellant all the ingredients of a charge and not to ask the accused to give an explanation as to how he came to be in possession of the property, when the charge is one of handling stolen property contrary to section 323 of the Penal Code. The facts of the charge must also support the charge.

37. From the record, it is clear he was not given an opportunity to explain how he came to be in possession of the property. The appellant admitted to the facts and consequently ended up pleading guilty. The trial court failed to give him a fair trial in this regard. In the result, I quash the conviction and set aside the sentence. Unless otherwise lawfully held, the appellant shall be released and set free forthwith.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 19th DAY OF MAY, 2022. R. NYAKUNDIJUDGEIn the presence of:Mr Mark Mugun for the state