[2006] KEHC 1744 (KLR)
The court found that the plea entered by the appellant was not unequivocal because the facts were not read out to the accused, nor was the appellant given an opportunity to confirm or deny the facts or comment on the exhibits. The phrase 'facts as per charge sheet' was deemed insufficient to satisfy the requirements...
Source-derived case information.
- Citation
- [2006] KEHC 1744 (KLR)
- Parties
- Appellant: Mary Akee; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 11 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Plea Taking, Changaa Possession, Conviction Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Akee
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea entered by the appellant was unequivocal and in compliance with legal requirements.
- 2 Whether the appellant was afforded an opportunity to respond to the facts and exhibits presented by the prosecution.
- 3 Whether the charge as framed was defective for failing to specify unlawful possession.
Ratio Decidendi
The court found that the plea entered by the appellant was not unequivocal because the facts were not read out to the accused, nor was the appellant given an opportunity to confirm or deny the facts or comment on the exhibits. The phrase 'facts as per charge sheet' was deemed insufficient to satisfy the requirements of a proper plea. Additionally, the charge was found to be defective for failing to specify unlawful possession. The court also noted that the trial court did not adequately consider the mitigating circumstances presented by the accused. As a result, the conviction was quashed and the sentence set aside, with the appellant ordered to be set free unless otherwise lawfully held.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
Criminal Appeal 11 of 2006
MARY AKEE...........................................................................................................APPELLANT
VS
REPUBLIC.........................................................................................................RESPONDENT
JUDGMENT
The appellant, Mary Akee being aggrieved and dissatisfied with the conviction and sentence imposed upon him by Senior Resident Magistrate Mrs. S. Shitubi on 6th March has preferred this appeal on seven (7) grounds.
The charge is being in possession of chang’aa contrary to Section 3(1) as read together with Section 4 (1) of the chang’aa prohibition Act (Cap 70) Laws of Kenya.
The particulars are that on the 4th day of March 2006 at Malaba Township in Teso District within the Western Province jointly with 5 others namely, Moses Otieno, Joseph Okidi, Rose Nafula, Mary Otieno and Benard Kariuki, were found in possession of one litre of chang’aa.
The record of proceedings is as follows:
ACCUSED PRESENT
“The substance of the chang’aa and every element of it has been read to the accused and on being asked whether he admits or denies each and every element of the charge replies”
PLEA: Accused 1: True
Accused 2: True
Accused 3: True
Accused 4: True
Accused 5: True
Accused 6: True
PROS: Facts as per charge sheet. I produce the chang’aa (seen).
COURT: Each is convicted on own plea of guilty.
PROS: 1st accused has been severally convicted of the same. the rest are first offenders.
1ST ACCUSED: It is true.
MITIGATION: 1st accused: I pray for leniency.
2nd accused: I am a boda. It was a ceremony.
3rd accused: It was a ceremony.
4th accused: It was a ceremony.
5th accused: It was a ceremony.
6th accused: It was a ceremony.
SENTENCE: I have noted the sentiments expressed by the prosecution. 1st accused to serve 4 months in jail. Accused 2 – 6 each to pay a fine of Ksh.2000/= in default two months in jail. Right of appeal within 14 days.
Mr. Were for the appellant argued that the trial court erred in law in convicting the appellant when the plea was not unequivocal. That the facts were not read to the accused. The appellant was not given the opportunity to comment on the exhibits. The appellant was not given an opportunity to confirm if the facts were true or not. That the charge was defective in that the fact of being in possession was not sufficient. The charge should have stated that the accused was unlawfully in possession of the same. Last but not least the trial court never considered the mitigating circumstances.
Mr Onderi, for the Republic, did not oppose the appeal and in my view correctly. Facts as per charge sheet is meaningless. The charge contains the particulars. In any event the appellant was not given opportunity to plead to the alleged facts.
For those reasons, I allow the appeal, quash the conviction and set aside the sentence. The accused is set free unless held for some lawful purposes.
Dated and delivered at Bungoma/Busia this 9th day of May 2006.
N.R.O. OMBIJA
JUDGE
MR. ONDERI: For Republic
MR. WERE: For Appellant