[2023] KEHC 22720 (KLR)
The court found that the appellant's plea of guilty was unequivocal, as he changed his plea after hearing the complainant's evidence and cross-examining her, and there was no new evidence introduced. The trial court's failure to ask the appellant to confirm the facts did not render the plea equivocal. However, the...
Source-derived case information.
- Citation
- [2023] KEHC 22720 (KLR)
- Parties
- Appellant: Mwandawa Mkala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E053 of 2022
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Appeal on sentence allowed; conviction upheld; sentence reduced.
- Judges
- GMA Dulu
- Legal Topics
- Rape, Plea of Guilty, Sentencing Principles, Sexual Offences Act, Mitigation, Equivocal Plea
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwandawa Mkala
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the appellant's plea of guilty was unequivocal and valid.
- 2 Whether the sentence imposed was harsh and excessive in the circumstances.
- 3 Whether the appellant was denied an opportunity to mitigate before sentencing.
Ratio Decidendi
The court found that the appellant's plea of guilty was unequivocal, as he changed his plea after hearing the complainant's evidence and cross-examining her, and there was no new evidence introduced. The trial court's failure to ask the appellant to confirm the facts did not render the plea equivocal. However, the court held that the appellant was not given an opportunity to mitigate before sentencing, which rendered the sentence harsh and excessive. The minimum sentence under the Sexual Offences Act is ten years, but the appellant's remorse and plea of guilty warranted a reduction. The court therefore set aside the thirty-year sentence and substituted it with twelve years' imprisonment...
Court Disposition
Appeal on sentence allowed; conviction upheld; sentence reduced.
Orders
- The sentence of thirty (30) years imprisonment is set aside.
- The appellant will serve twelve (12) years imprisonment from the date of the original sentence.
Full Case Text
Judgment text and source record
28 paragraphs
Mkala v Republic (Criminal Appeal E053 of 2022) [2023] KEHC 22720 (KLR) (27 September 2023) (Judgment)
Neutral citation: [2023] KEHC 22720 (KLR)
Republic of Kenya
In the High Court at Voi
Criminal Appeal E053 of 2022
GMA Dulu, J
September 27, 2023
Between
Mwandawa Mkala
Appellant
and
Republic
Respondent
(From the decision in Sexual Offence Case No. 36 of 2019 at Wundanyi delivered on 23rd October 2020 by Hon. E.M.Nyakundi (RM))
Judgment
1. The appellant was convicted on his own plea of guilty to rape contrary to Section 3(1) (a) (b) (3) of the Sexual Offences Act No. 3 of 2006, the particulars of which being that on 19th October 2019 at 0200hours in Taita Taveta County intentionally and unlawfully caused his penis to penetrate the vagina of EM a Taita adult aged 70 years without her consent.
2. Consequent upon the conviction, the appellant was sentenced to thirty (30) years imprisonment.
3. The appellant has now come to this court on appeal on sentence only stating that he is remorseful and pleaded guilty to the charge.
4. The appeal was canvassed through written submissions, and I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.
5. I note that in the written submissions, the Director of Public Prosecutions has contended that the plea of guilty of the appellant was not unequivocal and relied on a number of court cases. The Director of Public Prosecutions has asked for quashing of the conviction and for a retrial.
6. With all due respect, I have perused the proceedings. The appellant pleaded guilty after the complainant PW1 had tendered all her evidence and was cross-examined by the appellant. That is when the appellant changed his plea of guilty.
7. The prosecutor then stated that the evidence to support the charge was what PW1 had already stated. In my view, that evidence was not something new as the appellant had already heard the evidence of PW1 before changing his plea to guilty. Thus in my view, though the trial court did not ask the appellant to confirm the facts, that did not make the plea of the appellant equivocal.
8. Again, the fact that the appellant stated that the complainant was his friend or even lover, could not change the plea to not guilty, as each sexual advance has to be grounded on its own consent, even if it is between lovers.
9. I thus respectfully differ with the Director of Public Prosecution, and I uphold the conviction of the appellant.
10. With regard to sentence, I note that under Section 3 of the Sexual Offences Act the minimum sentence is a minimum of ten (10) years imprisonment but which can be enhanced to life imprisonment.
11. In my view, since the appellant pleaded guilty, he should have been given an opportunity to mitigate before he was sentenced. In the present case, the record does not show that the accused person was given an opportunity to mitigate. Thus in my view, the sentence imposed ended up being harsh and excessive. I will thus reduce it to twelve (12) years imprisonment.
12. Consequently and for the above reasons, I allow the appeal on sentence. I set aside the sentence of 30 years imprisonment. Instead, I order that the appellant will serve twelve (12) years imprisonment from the date he was sentenced by the trial court. Right of appeal explained.
DATED, SIGNED AND DELIVERED THIS 27TH DAY OF SEPTEMBER 2023 IN OPEN COURT AT VOI.GEORGE DULUJUDGEIn the presence of:-Nusura – Court AssistantAppellantMr. Sirima for State