[2022] KEHC 14141 (KLR)

OO alias M v Republic (Criminal Appeal E061 of 2021) [2022] KEHC 14141 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14141 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E061 of 2021

RPV Wendoh, J

October 19, 2022

Between

OO alias M

Appellant

and

Republic

Respondent

Judgment

1. OO alias M, the appellant, was convicted by the Hon. Resident Magistrate Migori on 26/2/2021 on his own plea of guilty on a charge of defilement contrary Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the charge are that on 20/10/2020 in Suna West Sub County, intentionally caused his penis to penetrate the vagina of LMA a child aged sixteen (16) years.

2. He was sentenced to fifteen (15) years imprisonment. He filed this appeal complaining that:-1)The court did not comply with Article 50 (2) (g) (h) o f the Constitution.2)That he was handed a harsh and excessive sentence.

3. The appellant therefore prays that the conviction be quashed, sentence set aside or be reduced. The appellants submission reiterated the grounds of appeal.

4. Mr. Omooria the prosecution counsel opposed the appeal. He observed that the appellant changed his plea after PW1 and PW2 had testified; that the plea was properly taken and the court complied with the steps set out in the case of Adan v Republic [1973] EA 445.

5. Counsel also urged that the facts disclosed the offence of defilement as there was evidence of penetration the complainant was a minor and the appellant was identified as he lived with the complainant for sometime.

6. In the instant case, the appellant was convicted on his own plea of guilty. Section 348 Criminal Procedure Code bars any appeal from a conviction arising from a plea of guilty except as to the extent and legality of the sentence. The section provides as follows.“Section 348 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.”

7. By virtue of the above provision, the appellant is barred from challenging the conviction except the extent and legality of the sentence meted on him. The court in Olal v Republic [1989] emphasized the above principle when the court said:-“Where a plea is unequivocal an appeal against conviction does not lie. Section 348 of the Criminal Procedure Code does not merely limit the right of appeal in such cases, but bars it completely.”

8. Going by the above decision it means that one can challenge the conviction on plea of guilty if the plea is equivocal which would render the plea unlawful.

9. The celebrated case of Adan v Republic supra, gave guidance on how a plea court should record a plea of guilty. The court stated as follows:-“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 on 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 add any relevant facts;(iv)If the accused does not agree with the facts or raises any questions 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.”

10. Although the appellant complained that Article 50(2) (g) of the Constitution on his right to counsel was infringed, the court record says otherwise. On 30/11/2020, the court informed the appellant of his right to counsel. The section provides as follows:-“(2)Every accused person has the right to a fair trial, which includes the right-(g)to choose, and be represented by, an advocate, and to be informed of his this right promptly;(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.”

11. The section also provides that the appellant should be informed of the right to counsel promptly. That means that the accused should be informed of the said right before plea or soon thereafter to enable the accused prepare his case. In this case , though the appellant was not informed of the right before plea, he was informed on 30/11/202 whereas the hearing commenced on 16/12/2020. The said right was not infringed.

12. On 26/2/2021, when the case came up for further hearing, the appellant requested that the charge be read to him afresh and that is when he changed plea. By then two, witnesses had already testified. The appellant admitted that the facts were correct. He said “It is true I lived with the girl in my house. She came to my home and I admit that we had sex as read out to the court”. After conviction the appellant claimed that the complainant had gone to live with him as a wife and he lived with her from February to November. In his submissions, the appellant still admits that he lived with the complainant and had sex with her. The complainant was examined and found to be sixteen (16) years old. The fact of penetration was not denied. From an examination of the Record of Appeal, the mitigation and appellant’s submissions, he still admits having had sex with the complainant. She was assessed at sixteen (16) years old. The Appellant was known to her as they were friends. He knew that she was school going. He should have taken caution to ensure that the complainant was not a child before engaging in sexual activity with the complainant. He has not said what he did to prove her age. For the above reasons, I find that the plea was proper and unequivocal and I affirm it. Whether the sentence was harsh: 13. The appellant is not a first offender, having been placed on probation for a similar offence there before in criminal case 670 of 2013. The offence is serious. The appellant is HIV positive and he knew that fact and yet he took advantage of the complainant knowingly. No wonder he was resisting to undergo HIV test. Unfortunately infecting the complainant with the disease aggravates the offence. Under Section 8(4), upon conviction, one is liable to a minimum of fifteen (15) years imprisonment. The appellant was given the minimum sentence despite the fact that he was said to have been on probation in Criminal 670 of 2013 for a similar offence. The probation officers report did not recommend probation and observed that the appellant had been involved in other cases enticing small girls in having sex with him and she would not benefit from probation.

14. Taking into account the special circumstances of this case, I find that a deterrent sentence should be meted against the appellant. Though a minimum sentence is provided for, the courts are moving away from minimum sentence which curtails the discretion of the court. In the exercise of this court’s discretion, and the fact that appellant is said to be twenty (20) years old, I will revise the sentence and substitute the sentence to ten (10) years imprisonment. The sentence will run from the date the appellant was sentenced on 22/3/2021. The appeal succeeds to that extent.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 19TH DAY OF OCTOBER, 2022R. WENDOHJUDGEJudgment delivered in the presence ofMr. Mulama, for the State.Appellant present in person.Evelyne Nyauke – Court Assistant