https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7260

Bonaya v Republic (Miscellaneous Criminal Application E036 of 2026) [2026] KEHC 7260 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEHC 7260 (KLR) Republic of Kenya In the High Court at Nyahururu Miscellaneous Criminal Application E036 of 2026 LN Mutende, J May 20, 2026 Between Michael Nguya Bonaya Applicant and Republic Prosecution Ruling 1.Michael Nguya Bonaya was arraigned for the offence of Assault causing actual bodily harm in contravention of Section 251 of the Penal Code. Through a recorded plea of guilty he was convicted and sentenced to serve two (2) years imprisonment. 2.Through an application dated 15.4.2026 by the firm of Ndegwa Wahome and company advocates, the Applicant seeks revision of orders of conviction and imprisonment. He also urges that the plea is unequivocal and improperly entered. In the result an order for retrial is sought so that the Applicant can take a plea afresh so as to defend himself. 3.The application is premised on grounds that at the time of taking plea the Applicant was not in a proper mental state as he had been undergoing rehabilitation due to drug related mental health issues and his mental condition affected his ability to fully understand the charge, proceedings and the consequences of pleading guilty. 4.That the trial court did not inquire into the mental status before recording the plea and since he had no counsel at the time, he pleaded guilty without guidance during plea taking. 5.That no medical report including a duly completed P3 form or any other clinical documentation was produced before the trial court to establish or confirm the nature or extent of the injuries allegedly sustained by the complainant and consequently there was no evidentiary basis to support the classification of the offence rendering the conviction unsafe and improper. 6.Further, that the facts of the case were not read to the Applicant in a language that he understood at the material time as he was suffering from mental instability arising from drug related issues and was undergoing rehabilitation thereby impairing the capacity to plead and on the date of plea he appeared drunk and not in a stable state of mind. 7.I have duly considered the application, supporting affidavit and annextures thereto and the record of the lower court, in exercise of revisional jurisdiction, this court must be guided by statute, section 362 of the Criminal Procedure Code provides thus;The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court. 8.The supervisory jurisdiction bestowed upon the High Court by Statute is limited to correcting errors on mistakes regularizing illegalities and procedural breaches by the lower court. The court must be satisfied of the propriety of any finding of the subordinate court. In exercising the jurisdiction, the court can be moved by an applicant or could even act suo moto. In that regard though granted the opportunity as it didn’t file any response. Therefore, the prosecution had no input in the matter. 9.I have examined the record of the trial court that reads this;“FactsOn 27.3.2026 at Mairo Inya area, the accused was brought to rehab for assessment. On 31.3.2026 the complainant was at Mairo Inya recovery centre and then he started to cause fracas. The complainant came to the scene but he attacked him with fists. The persons who were nearby intervened and rescued the complainant. The complainant reported the matter at Mairo Inya Police station where he was issued with a P3 form. The complainant was treated and P3 form was duly filled. I produce the treatment notes as Exhibit 1 and P3 Form as Exhibit 2. The accused was arrested and he was charged with the present offence. That is all.Accused; All the facts are correct.State counsel; She is a 1st offender.MitigationAccused; I have a dental clinic which has not been attended.Court; Accused is sentenced to serve 2 years imprisonment.” 10.I am guided by the case of Adan v Republic [1972] EA 445 where guidelines were given in respect of plea taking to ensure the rights of accused persons who have no privilege of representation by counsel are safeguarded. In the stated case the court stated thus;“(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.” 11.It is hence a requirement that the charge and its elements/ingredients be read to the accused in a language that he understands. The record indicates that the language of interpretation was English and Kiswahili. It is specified that the charge and its elements were explained to the Applicant in Kiswahili and he pleaded to the charge. The allegation by the Applicant would have been conclusively disproved had the court recorded that “…Kiswahili a language that the accused understands…” And the response should have been recorded in his words. 12.Although there was an interpreter present whose duty is to ensure that linguistic access to justice is engaged appropriately in the conversation between him and court; the Applicant herein had been taken to a rehabilitation centre for assessment and it is alleged that his mental condition affected his ability to fully understand the charge. 13.The court was duty bound to verify the Applicant’s capacity to understand the process of plea taking. The presiding magistrate was under an obligation to conduct an inquiry to investigate the mental status of the individual by calling for a Psychiatric Evaluation Report prior to the case proceeding. Having proceeded without a report the court would not tell if the Applicant understood what he admitted to. This made the plea equivocal. This was irregular and improper. 14.This court has been asked to order a retrial as the impropriety was initiated by the court. In Fatehali Manji v Republic [1966] EA 343 the Court of Appeal of Eastern African restated principles upon which a retrial should be ordered thus;“In general a retrial will be ordered only when the original trial was illegal or defective, and from the particular facts and circumstances of the case, the appellate Court, or the court on revision, is of the opinion that on a proper and judicious consideration of the admissible or potentially admissible evidence, a conviction might result, and further that the court is satisfied, not only that the interests of justice require the order for a retrial to be made, but also that such an order when made is not likely to cause injustice to the accused person.” 15.In Bernard Lolima Ekimat v Republic [2005] KECA 329 (KLR) the Court of Appeal stated that;“…..to enable a successful retrial to proceed. In the case of Ahmed Sumar v Republic [1964] EA 481, at page 483, the predecessor to this Court stated 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 mis take 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”.“We are also referred to the judgment in Pascal Clement Bragan za v R [1957] EA 152. In this judgment the Court accepted the principle that a retrial should not be ordered unless Court was of the opinion that on a 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 require it and should not be ordered where it is likely to cause an injustice to an accused person”.” 16.This is a case where a P3 was adduced, the complainant sustained a swollen forehead and tenderness on the wrist. No previous records were presented hence the Applicant was treated as a first offender. No Pre-Sentence Report was sought to provide the court with the Applicant’s background so as to determine if he could not be rehabilitated through any other sentence except a custodial one. 17.Notably the Applicant has been incarcerated for a period of one month and 20 days. Considering his condition that was not determined it will not be in the interest of justice for this court to order a retrial. Therefore, I direct that the Applicant shall be released forthwith unless otherwise lawfully held. 18.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH MAY, 2026................................HON L. MUTENDEJUDGE