[2017] KEHC 8599 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NO.16 OF 2017

MSHIMIRIMANA CLAUPINE.................................1ST APPLICANT

MUTESI CHRISTINE..............................................2ND APPLICANT

VERSUS

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

RULING

The Applicants, Mshimirimana Claupine and Mutesi Christine are Burundian nationals. They were charged with the immigration offence ofunlawfully being present in Kenya. When they were arraigned before the trial magistrate’s court, they pleaded guilty to the charge. They were convicted on their own plea of guilty. They were sentenced to pay a fine of Kshs.100,000/- or in default they were each ordered to serve one (1) year imprisonment. They were sentenced on 13th December 2016. The Applicants were not able to raise the fine. They are serving the default sentence. On 2nd February 2017, the Applicants made an application for revision before this court. They contend that they did not follow the language of the court and therefore they were shocked when they were convicted and sent to prison. They contend that the only language that they understand is Kirundi and French. For the above reason, they pleaded with the court to set aside their conviction and sentence. They further urged the court to take into consideration that the fact that the fine that was imposed by the trial court was too steep for them and therefore the court should reconsider the same.

During the hearing of the application, this court heard oral rival submission made by Mr. Mulandi for the Applicants and by Ms. Atina for the State. Mr. Mulandi submitted that the plea of guilty that was recorded was not unequivocal in that the Applicants did not understand the language of the court. He explained that due to language barrier, the Applicants were not aware of what was being communicated to them by the court. He urged the court to reconsider the fine that was imposed by the trial court. He was of the view that it was too harsh. The Applicants were not able to raise the same. He prayed that the court reviews the sentence and make an order releasing the Applicants.

Ms. Atina for the State partially opposed the application. She submitted that the Applicants understood the language of the court. The plea was taken in Kiswahili a language that the Applicants understood. The Applicants understood the charges and cannot now claim that they did not understand the language of the court. In regard to sentence, she submitted that she was not averse to the court exercising its discretion to mete out an appropriate sentence. Otherwise, she was of the opinion that the conviction and sentence of the trial court was lawful.

This court has carefully considered the facts of this case and the rival submission made by the parties to this application for revision. Article 50(2)(m) of the Constitution mandates that an accused person shall be provided with the “assistance of an interpreter without payment if the accused person cannot understand the language used at the trial.” The Court of Appeal inAdan –Vs- Republic [1973] EA 445 held that where an accused person does not understand the language on which plea is taken, then it cannot be said that the plea of guilty subsequently recorded was unequivocal. In the present application, it was clear from the proceedings of the trial court that the Applicants understood Kiswahili language. They even communicated to court in Kiswahili when they were called upon to mitigate their sentences. It is clear to this court that the claim by the Applicants that they did not understand the language in which plea was taken is an afterthought and should be dismissed. This court therefore holds that the plea of guilty that was recorded was unequivocal. The trial court correctly recorded the plea of guilty.

As regard sentence, this court is of the view that the Applicants, being persons on transit (they were allegedly travelling to Saudi Arabia), should have been sentenced to serve a less severe sentence than the one that was imposed by the trial court. In the premises therefore, this court is of the view that the period that the Applicants have been in prison is sufficient punishment for them. The default custodial sentence imposed by the trial court is hereby commuted to the period already served. They are ordered released from prison and handed over to the Immigration Directorate who shall repatriate them to their country of origin – Burundi. It is so ordered.

DATED AT NAIROBI THIS 15TH DAY OF MARCH 2017

L. KIMARU

JUDGE