[2010] KEHC 1720 (KLR)
The court found that the trial magistrate's failure to formally convict the appellant after her plea of guilty constituted a fatal procedural error. Section 207(2) of the Criminal Procedure Code mandates that upon an accused admitting the truth of the charge, the court must record the admission and convict the...
Source-derived case information.
- Citation
- [2010] KEHC 1720 (KLR)
- Parties
- Appellant: Mary Kisinga Maluki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 268 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Plea of Guilty, Conviction Procedure, Sentencing, Criminal Appeal, Procedural Error
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Kisinga Maluki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the failure to formally convict the appellant after a plea of guilty renders the sentence null and void.
- 2 Whether a retrial should be ordered after the appellant has served part of the sentence.
Ratio Decidendi
The court found that the trial magistrate's failure to formally convict the appellant after her plea of guilty constituted a fatal procedural error. Section 207(2) of the Criminal Procedure Code mandates that upon an accused admitting the truth of the charge, the court must record the admission and convict the accused before passing sentence. In this case, although the appellant pleaded guilty and admitted the facts, no conviction was entered, rendering the subsequent sentence a nullity. The court quashed the conviction and set aside the sentence. Considering the appellant had already served over one and a half years of an invalid sentence, the court declined to order a retrial, finding...
Court Disposition
appeal_allowed
Orders
- The appellant's conviction is quashed.
- The five-year sentence is set aside.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Criminal Appeal 268 of 2008
MARY KISINGA MALUKI.................... APPELLANT
VERSUS
REPUBLIC .................................................... RESPONDENT
JUDGEMENT
The Appellant MARY KISINGA MALUKI had on 19th September 2008 been charged before the learned Senior Resident Magistrate Kwale Law Courts with the offence of CONCEALING BIRTH OF A CHILD CONTRARY TO SECTION 227 OF THE PENAL CODE.The Appellant pleaded guilty to the charge.She was thereafter sentenced to serve five (5) years imprisonment without the option of a fine.Being aggrieved by this sentence the Appellant filed this appeal.
MR. ONSERIO the learned State Counsel conceded this appeal for reasons that were quite apparent.I have myself perused the record from the lower court and I note that the learned trial magistrate made one fatal omission.The charges were read out to the Appellant in Kiswahili and she did plead guilty by stating
"It is true”
Thereafter as required by law and procedure the facts were also read out to the Appellant by the court prosecutor.The Appellant responded to those facts as follows –
“The facts are correct”
The prosecutor then proceeded to ask that the Appellant be treated as a first offender.Her mitigation was heard and sentence pronounced.At no time at all in the course of these proceedings did the learned trial magistrate ever ‘convict’ the Appellant despite her plea of guilty.S. 207(2) of the Criminal Procedure Code provides
“If the accused admits the truth of the charge 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 [my emphasis]”
The words of S. 207 are very clear and are couched in mandatory terms.The court “shall” convict the accused upon a plea of guilty.In this case the Appellant did plead guilty but no conviction was rendered at all.This is a fatal omission which makes the ensuing sentence null and void.One cannot be sentenced unless one has first been convicted.The trial magistrate omitted a crucial part of the criminal process.On this ground alone this appeal succeeds.I quash the Appellant’s conviction and set aside the five (5) year sentence.
Mr. Onserio for the State did ask that the court order a re-trial in this matter.I note that the Appellant was convicted in September 2008. It is now July 2010. She has therefore served over 1½ years of what was an invalid sentence.To order a trial at this point would in my view be prejudicial to the Appellant.I have no doubt that she has spent enough time behind bars to make her see the error of her ways.As such I decline to order a re-trial.The Appellant is to be set at liberty forthwith unless she is otherwise lawfully held.
Dated and Delivered inMombasathis 12th day of July 2010.
Mr. Ondari for State
Appellant in person
M. ODERO
JUDGE
12/07/2010