[2022] KEHC 1438 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL APPEAL NO.E14 OF 2021

MICKY MODI MWANGI...............................................APPELLANT

VERSUS

REPUBLIC.....................................................................RESPONDENT

(Being an appeal from the original conviction and sentenced in Mukurweini PMC Criminal case No.E078 of 2021 by Hon. E. N. Angimac, RM delivered on 8/6/21)

JUDGMENT

1. The appellant was convicted of the following offences and sentenced as hereunder:

Count 1 – permitting a motor cycle to be ridden on a public road without insurance cover contrary to section 103B (3) as read with section 103B (7) of the Traffic Act Cap.405 Laws of Kenya. The sentence imposed was to serve one year imprisonment.

Count 2 – Permitting a rider to ride a motor cycle on a public road without a driving licence contrary to section 103B (5A) as read with section 103B (7) of the Traffic Act Cap.405 Laws of Kenya. He was sentenced to serve one year imprisonment.

Count 3 – Failing to keep written records of a rider contrary to section 111(1) as read with section 111(3) of the Traffic Act Cap 405 Laws of Kenya. He was sentenced to a fine of Ksh.10,000/- in default of payment to serve three months imprisonment.

2. The appellant was aggrieved by the conviction and the sentence and filed this appeal. The grounds of appeal are that:

3. The court record indicates that the appellant was arraigned in court on the 24/5/2021 when the charges were read out to him and he admitted the charges to be true. The trial court then entered a plea of guilty. The prosecutor proceeded to give the facts of the case. The appellant admitted the facts of the case but when he came to mitigation he denied some of the facts of the case. The trial court then found that the plea was equivocal and recorded a plea of not guilty. The court then fixed the matter for mention on 8/6/2021 and hearing on14/6/2021. When the matter came for mention on 8/6/2021, the appellant said that he wanted to change plea. The charges were read to him and he admitted the three counts. The trial court entered a plea of guilty. The prosecutor told the court that -

“The facts are as read out on 24/5/2021. The motor cycle was being used for commercial purposes. I produce the log book, the accused`s identity card,the PM form and the inspection certificate”.

4. The accused then responded that the facts were true upon which he was convicted on his own plea of guilty. The prosecutor informed the court that she had no records for the appellant. The appellant said that he had nothing to say in mitigation. The court then imposed sentence as stated above.

5. The appeal proceeded by way of written submissions by the appellant who was appearing in person and by the learned Principal Prosecution Counsel, Miss Pauline Mwaniki appearing for the state.

6. The appellant collapsed his grounds of appeal into two;

(1) That the trial court erred in law and in fact in failing to comply with section 207 of the Criminal Procedure Code during plea taking as a result of which the plea was not unequivocal.

(2) That the trial court erred in law and in fact in failing to consider that the appellant was a first offender and as a result imposed a sentence that was harsh and excessive.

7. On the first ground, the appellant submitted that the trial court did not comply with section 207 of the CPC and as articulated in the case of Adan v Republic (1973) EA 445in that the facts were not read out to him. That what the prosecutor stated in court that the facts were as read out on the 24/5/2021 did not amount to facts.

8. On the second ground the appellant submitted that the sentences in counts 1 and 2 were harsh and excessive in that he was given the maximum sentence in the two counts without the option of a fine. That the sentence amounted to a miscarriage of justice as he was a first offender.

9. The state conceded to the entire appeal. The learned prosecution counsel submitted that the trial court failed to comply with section 207 of the CPC when the appellant indicated that he wanted to change his plea. That the facts of the case were not read to the appellant before he was convicted. That it is not clear what the appellant pleaded to. That it was the duty of the court to satisfy itself that the accused understood every element of the charge that he was facing including the facts. That the plea of guilty was not unequivocal.

10. The state counsel further submitted that count 1 as drafted was incurably defective as the offence stated therein is not known in law. That the section relates to riders and not owners of motor cycles as pleaded in the charge sheet. The charge therefore did not disclose any offence. That the conviction was not safe and the sentence imposed thereupon cannot stand.

11. On sentence, counsel submitted that the appellant was given the maximum sentence in counts 1 and 2 without the option of paying a fine. That he was a first offender and it is not in dispute that he was not the rider of the motor cycle when the accident occurred. It was submitted that in case the court finds that the charges were proper, the sentences in counts 1 and 2 were harsh and excessive and should be reconsidered by this court.

Determination –

12. The issues for determination in the appeal are:

(1) Whether the plea was unequivocal

(2) Whether the plea was defective

(3) Whether the sentence was harsh and excessive.

13. The legal basis for taking pleas is section 207 of the Criminal Procedure Code that provides that:

207. Accused to be called upon to plead

(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.

(3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided.

14. The said section was articulated by the Court of Appeal in Ombena v Republic(1981) eKLR where the court cited its earlier decision in Adan v Republic (supra) where the court laid down the manner in which pleas of guilty should be recorded and the steps which should be followed, 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.”

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.”

15. See also Obedi KIlonzo Kevevo v Republic (2015) eKLR.

16. It is conceded that when the appellant decided to change his plea on the 8/6/2021, the prosecutor did not give the facts of the case to the court. As the facts had been given to the court on the 24/5/2021, the trial court should have read the facts to the accused and require him to answer on whether he admitted them or not. The failure to do so means that the plea was not taken as required by section 207 of the CPC and as articulated in Adan v Republic(supra) where the court particularly emphasized the importance of giving the facts of the case.

17. The appellant was not represented by counsel during plea. It the duty of the trial court to ensure that an accused person understands the charge facing him before a guilty plea is entered. In this case an important step in plea taking was skipped. It cannot be said that the accused understood the charges that he was facing. The plea was thereby not unequivocal.

18. The appellant was charged with offences under section 103B of the Traffic Act. The section provides as follows:

103B. Helmets and reflector jackets

(1) A person, including a passenger, shall not ride on a motor cycle of any kind, class or description without wearing a helmet and a jacket that has reflectors.

(2) A person who rides a motor cycle shall provide a helmet and a jacket that has reflectors to be worn by the passenger, and shall carry only one passenger at a time.

(3) Every motor cycle shall be insured against third party risks in accordance with the Insurance (Motor Vehicles Third Party Risks) Act (Cap. 405).

(4) For the purposes of this section, a helmet shall be of such shape, construction and quality as may, from time to time, be prescribed by the Minister by notice in the gazette.

(5) A person shall not ride a motorcycle unless that person has a valid driving licence issued in accordance with the provisions of the Act.

(5A) The registered owner of a motorcycle shall ensure that any person who rides the motorcycle has a valid driving licence issued in accordance with the provisions of this Act.

(6) For the purpose of this section, “ride” means to operate, manage or to be in control of a motor cycle.

(7) A person who contravenes or fails to comply with the provisions of this section commits an offence and is liable to a fine not exceeding ten thousand shillings or, in default of payment, to imprisonment for a term not exceeding twelve months.

19. The charge in count 1 was that the appellant, being the owner of a motor cycle, permitted it to be ridden on a public road without insurance cover contrary to section 103B (3) as read with section 103B (7) of the Traffic Act. It is clear that section 103B (3) requires that every motor cycle be insured against third party risks. Section 103 B (7) makes it an offence for a person to fail to insure a motor cycle against third party risks. Ideally, the person to procure the insurance cover is the owner of the motor cycle. It is therefore in order to charge the owner of the motor cycle under the two sections for failure to insure a motor cycle. I do not agree with the prosecution counsel that count 1 was defective.

20. Having come to the conclusion that the plea taken by the trial court was not unequivocal, there is no need for me to consider whether the sentence was harsh as the proceedings were a mis-trial and occasioned a miscarriage of justice. The question is whether I should order a re-trial.

21. The principles upon which a court may order a re-trial are well settled. A re-trial should only be ordered where the interests of justice require and would not occasion prejudice to the appellant. In the case of Fatehali Manji Vs Republic [1966] EA 343 the predecessor of the Court of Appeal when dealing with the issue held that:-

“In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered when the conviction is set aside because of insufficiency of evidence or for the purpose 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; each case must depend on its own facts and circumstances and an order for a retrial should only be made where the interests of justice require it.”

22. In Opicho vs Republic [2009]KLR, 369, the Court of Appeal stated that:-

“In general, a retrial would be ordered only when the original trial was illegal or defective. It would not be ordered where the conviction was set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial. Even where a conviction was vitiated by a mistake of the trial court for which the prosecution was not to blame, it does not necessarily follow that a retrial should be ordered. Each case must depend on its own facts and circumstances and an order for retrial should only be made where the interests of justice required it.”

23. In the instant case, both the prosecutor and the court were to blame for the manner the plea was taken. The prosecutor failed to give the facts of the case afresh while the court abrogated its duty in not ensuring that the appellant understood every element of the charge including the facts of the case.

24. I have however considered that the appellant spent over 5 weeks in prison before he was released on bond pending the hearing of the appeal. Considering the type of offences that he was facing, I do not think that a re-trial will serve the interests of justice. Even if he were to be eventually found guilty of the offences the time served in prison was sufficient.

25. I therefore declare that there was a mistrial in the case against the appellant and discharge him accordingly.

DELIVERED,DATED AND SIGNED IN OPEN COURT AT NYERI THIS 17TH DAY OF MARCH, 2022.

J. N. NJAGI

JUDGE