[2022] KEHC 13583 (KLR)

Omondi v Republic (Criminal Appeal E030 of 2022) [2022] KEHC 13583 (KLR) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13583 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E030 of 2022

RE Aburili, J

October 4, 2022

Between

Patrick Omondi

Appellant

and

Republic

Respondent

(eing an Appeal arising from Conviction and sentence of Hon. C.N.C Oruo, Senior Resident Magistrate in Senior Principal Magistrate’s Court at Winam in Criminal Case No. E311 of 2022 on 13. 7.2022)

Judgment

1. When this appeal came up for hearing interpartes on October 3, 2022 which was yesterday, the respondent state through Ms Nambisia, prosecution counsel holding brief for Ms Odumba Senior principal prosecution counsel informed the court that they were not opposed to the appeal being allowed. They rightly did so.

2. I have considered the grounds of appeal, and the submissions filed by the appellant.

3. In my view, the plea of guilty was not unequivocal. The language in which the appellant is said to have pleaded guilty, and which language he is said to have understood, or even the language by which the charges of preparation to commit a felony and trespass upon private land were read to him are not indicated. That omission alone is fatal to the guilty plea.

4. In addition, the facts as read out to the appellant in an undisclosed language did not disclose any offence, considering the probation officer’s report dated July 11, 2022 that the appellant had just visited his friend when the friend switched off his phone leaving the appellant stranded and so he went to seek for accommodation at the complainant institution from whence he was arrested and taken to the police station. There was no demonstration that he was preparing to commit any theft.

5. The manner in which a plea of guilty is to be taken is well established. Where the court finds that the plea was equivocal, such conviction and sentence that followed cannot stand or be sustained.

6. The Court of Appeal in Alexander Lukoye Maliku vs Republic [2015]eKLR held that an appellate court may only interfere with a guilty plea if the plea taken is ambiguous, imperfect, unfinished, or that the trial court erred in, treating it as a guilty plea.

7. The Court of Appeal further observed that where the accused pleads guilty as a result of misapprehension or mistake or where the charge disclosed no offence know n law, the appellate court will set aside the guilty plea.

8. The Court of Appeal in John Muendo M vs Republic [2013]eKLRstated as follows on the law of plea taking:'The legal principles to be applied in plea taking in all criminal cases were well enunciated in the locus classicus case of Adan vs Republic (1973)EA 445 where the court held:'(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 facts, relevant to sentence together with the accused’s reply should be recorded.'

9. The courts have emphasized that especially where the offence committed carries a hearing penalty such a death or life imprisonment, courts should treat plea taking with caution especially where the accused is unrepresented. (See Abdalla Mohammed vs Republic [2018]eKLR where it was stated that, the importance of the need for the court to be cautious when accepting a plea of guilty from an undefended accused person was stressed by Joel Ngugi J in Simon Gitau Kinene vs Republic[2016]eKLRwhere he stated that:'Finally, courts have always held that extra caution needs to be taken in the case of undefended defendants who plead guilty. I have previously held that where an accused person is unrepresented, the duty of the court to ensure the plea of guilty is unequivocal is heightened.In Paulo Malimi Mbusi vs Republic Kiambu Cr Application No 8 of 2016 (UR) thus what I said and I find it relevant here:'In those cases [where there is an unrepresented accused charged with a serious offence], care should always be taken to see that the accused understands the elements of the offence, especially if the evidence suggests that he has a defence. To put it plainly, then, one may add that where an unrepresented accused person pleads guilty to a serious change which is likely to attract custodial sentence, the obligation of the courts to ensure that the accused understands the consequences of such a plea is heightened.Here, the court took no extra effort to ensure this. In these circumstances, given the seriousness of the charge, the court was about to convict and sentence the accused person for, it behooved the court to warn the accused persons of the consequences of a guilty plea.'

10. In the instant appeal, the appellant faced custodial sentence of more than two years. It was therefore critical that the trial court takes the guilty plea with caution, to avoid any miscarriage of justice.

11. In addition, the appellant has consistently told this court that he is a student who was looking for his friend and when he missed to get him, he took refuge in the complainant’s institution as he waited for his friend, not knowing the consequences thereof. In addition, that when he was taken to the police station, the police told him that the case was such a small issue so he should plead guilty and get off the hook which he abided only for him to be jailed.

12. The appellant was laboring under misapprehension and being misguided by the police who rearrested him. He is a young man aged 19 years old and could have been just naïve.

13. The probation report paints him as cunning, having squandered school fees paid by his brother for him to join Highlands University only for him to drop out. That is a bad sign of a young person who is losing track and who ought to be mentored to get back on track as he can achieve much in life if he lives an honest life and work hard.

14. In addition, I find that this is not one of those cases where I would not order for a retrial as the facts do not disclose the offence charged.

15. I allow the appeal, quash the conviction of the appellant and set aside the consecutive sentences of one year and six months imprisonment respectively imposed on the appellant. Therefore, unless otherwise lawfully held, the appellant Patrick Omondi is hereby set at liberty forthwith.

16. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 4TH DAY OF OCTOBER, 2022. RE ABURILIJUDGE