[2023] KEHC 26453 (KLR)

Ong’ondo v Republic (Criminal Appeal E013 of 2023) [2023] KEHC 26453 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26453 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Appeal E013 of 2023

KW Kiarie, J

December 7, 2023

Between

Henry Ondieki Ong’Ondo

Appellant

and

Republic

Respondent

(From the original conviction and sentence in SO case No. 5 of 2021 of the chief Magistrate's Court at Kisii by Hon. D . Mac' Andere - Resident Magistrate)

Judgment

1. Henry Ondieki Ong’ondo, the appellant herein, was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No. 3 of 2006, after pleading guilty.

2. The particulars of the offence are that on the 14th day of January 2021 at Marani sub-County within Kisii County, intentionally and unlawfully caused his penis to penetrate the vagina of FNA, a child aged 2 1/2 years.

3. The appellant was sentenced to thirty (30) years’ imprisonment. He was aggrieved and filed this appeal through the firm of Aboki Begi & Company Associates. He raised grounds of appeal as follows:a)The learned trial magistrate erred in law in failing to read and explain the charge to the appellant before taking plea in the language which the appellant understands contrary to the peremptory Provisions of Article 50 (3) of the Constitution.b)The learned trial magistrate erred in law in failing to inform the appellant of his rights to be represented by an advocate in breach of the peremptory provisions of Article 50(2) (g) of the Constitution.c)The learned trial magistrate erred in law in failing to assign the appellant an advocate at the expense of state in view of the substantial injustice which would result to the appellant in view of his plea.d)The learned trial magistrate erred in law and fat in convicting the appellant as charged without proof of the necessary ingredient of the age of the child.e)The learned trial magistrate erred in law and fact in failing to consider the clear expert evidence indicating that there was no tear noted upon examination of the complainant, which would create doubt on penetration, which is an important ingredient in charge of defilement.

4. The appeal was opposed by the state through Justus Ochengo, learned counsel. He raised the following grounds of opposition:a)That the appellant was warned of the seriousness of the offence.b)That the facts were read to the appellant.c)That the plea of guilty was unequivocal.d)That the sentence was very lenient.

5. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno v Republic [1972] EA 32.

6. In the leading case of Joseph Marangu Njau v Republic [2015] eKLR the Court of Appeal stated:Whereas all the perils a guilty pleader embraces may not much matter in petty offences or in mere infractions which do not present much risk to life or liberty, much is at stake in the offences that attract more serious penal consequences. In the case before us, the balance of the appellant’s natural life stood to be spent behind bars upon conviction.Cognizant of the ever-present dangers of misjustice [sic] in guilty pleas, the courts have been vigilant to act upon and to uphold them only when they are clear, express, unambiguous and unequivocal. When a plea of guilty is challenged as not having been entered unequivocally, it becomes a matter of law that permits the superior courts to entertain appeals notwithstanding Section 348 of the CPC aforesaid. The predecessor of this Court considered and authoritatively laid down the manner in which pleas of guilty should be recorded and the steps which should be followed, in the decades-old case of Adan v Republic [1973] EA 445, as follows;“(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 raise 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 the instant case, I will endeavour to establish if the plea adhered to the laid down procedure as indicated in the case of Adan ( supra).

7. The appellant was presented to the court on January 15th, 2021. Although it was not indicated in what language the charge was read to him, the court assistant was Rioba. I take judicial notice that a majority of people called Rioba are from the Abagusii community with a few exceptions from their cousins and neighbours the Kuria. Rioba must have translated into Ekegusii. If we assume the court used either English or Kiswahili, he had the right to protest. I therefore make a finding that the appellant understood the language used by the court.

8. The learned trial magistrate was very cautious. After the appellant had pleaded guilty, she warned him of the seriousness of the offence and maintained his plea of guilty. The facts were then read to him and he confirmed them to be true.

9. When the appellant was given a chance to mitigate, he pleaded for forgiveness. This further confirms that he understood the communication by the court.

10. I therefore find that the plea was unequivocal and the trial court did not deviate from the laid down guidelines.

11. Section 348 of theCriminal Procedure Code provides as follows:No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.I will therefore endeavour to establish the legality of the sentence bearing in mind that an appellate court would interfere with the sentence of the trial court only where there exists, to a sufficient extent, circumstances entitling it to vary the order of the trial court. These circumstances were well illustrated in the case of Nillson v Republic [1970] E.A. 599, as follows:The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R v Shershewsity (1912) C.CA 28 T.LR 364.

12. Section 8 (2) of the Sexual Offences Act provides as follows:A person who commits an offence of defilement with a child aged elevenyears or less shall upon conviction be sentenced to imprisonment for life.

13. In the instant case the minor was aged 2 1/2years. The prescribed is mandatory life imprisonment. He was sentenced to 30 years but the state did not seek an enhancement. I, therefore, have no basis to interfere with the sentence. The appeal is dismissed.

DELIVERED AND SIGNED AT KISII THIS 7THDAY OF DECEMBER 2023KIARIE WAWERU KIARIEJUDGE