[2022] KEHC 17193 (KLR)

Ouma v Republic (Criminal Appeal E022 of 2021) [2022] KEHC 17193 (KLR) (7 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17193 (KLR)

Republic of Kenya

In the High Court at Garsen

Criminal Appeal E022 of 2021

SM Githinji, J

December 7, 2022

Between

David Odhiambo Ouma Alias Daudi

Appellant

and

Republic

Respondent

(Being an appeal from Original conviction and sentence in lower court criminal case file No.14 of 2019 in the Principal Magistrate Court at Mpeketoni before Hon R.G.Mundia – Senior Resident Magistrate delivered on 30th December, 2019)

Judgment

Coram: Hon. S.M GithinjiAppellant in personMs. Mkongo for state 1. David Odhiambo Ouma alias Daudi was charged in the lower court with three counts under Sexual Offences Act with an alternative count to each of the three main counts.

2. On December 30, 2019 he pleaded guilty to the main count of the first count and not guilty to the rest of the counts. The charge in the first count is of attempted defilement, contrary to section 9 (1) as read with section 9 (2) of the Sexual Offences Act No 3 of 2006.

3. The particulars of this offence are that on the 20th day of December, 2019 in Lamu West Sub County within Lamu County, the Appellant herein intentionally attempted to cause his penis to penetrate the vagina of EMM a child aged 10 years.

4. The Court used Swahili in it’s proceedings of December 30, 2019 and when the statement of the offence and its particulars were stated to the Appellant, he said it’s true. A plea of guilty was entered and the prosecution stated the facts as follows; -“…..On December 20, 2019 at [Particulars Withheld] village the accused a neighbour to the complainant in count 1 went to the complainant’s house and found her with her siblings at around 1600hours. He lured the complainant into the house after giving her a sweet and went to one of the rooms where the accused undressed the complainant. He also undressed. He placed the complainant on the bed and using his penis tried to penetrate the complainant’s vagina. He was unable to penetrate and after the attempt he decided to abandon the whole act.The accused warned the complainant not to raise alarm. Fortunately, the complainant’s elder brother arrived home from grazing and found the accused with the complainant outside the bedroom. The elder brother proceeded to report the matter to the complainant’s father who escorted the complainant to hospital, Witu Health Centre where she was examined and a P3 form filled plus the treatment notes and the complainant father made a report at the police station.The complainant’s father and members of the public arrested the accused. The public assaulted him and escorted him to Witu Police Station where he was re-arrested and charged.The P3 Form was produced as prosecution exhibit 1 and treatment notes indicating the age of the victim as 10 years as prosecution exhibit 2. ”

5. When the Appellant was called upon to plead to those facts he stated;“Facts are correct.”In mitigation he said“I am sorry.”

6. The Court sentenced him to 10 years imprisonment.

7. The amended grounds of Appeal filed by the Appellant on January 17, 2022 as well as his submissions shows that he does not challenge the conviction but the sentence of 10 years imprisonment. He alleges that he is remorseful, he will not repeat the offence and regrets the circumstances under which he committed it. He further mitigates that he is the sole bread winner for his elderly parents; he has reformed and will abide by the law. In his mitigation he reflects on the legal principles and objectives governing sentencing of an offender.

8. The prosecution opposed the appeal. In their written submissions they averred that the plea of guilty was unequivocal and fully complied with guidelines laid down in the case of Adan vs Republic [1973] EA 445. They as well relied on provisions of section 348 of the Criminal Procedure Code, which states that; -“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on the plea by a subordinate court except as to the extent or legality of the sentence.”In this regard, the prosecution submitted that the sentence meted against the Appellant is not illegal. They depended on the finding in the case of Joseph Mureithi Kanyita vs Republic [2017]Eklr where the Court held that;“In this appeal, the sentence of the trial court was not illegal or unlawful. There is no palpable misdirection by that Court apparent on the record. We do not perceive any material factor that the trial court overlooked or any immaterial factor that it took into account. It has not been demonstrated that the trial court acted on a wrong principle or the sentence it imposed was manifestly excessive or manifestly low.”

9. Having weighed all the foregoing issues, I wish first to interrogate the process of plea taking by the trial court, when the facts were read to the Appellant herein, to which he pleaded that the facts were correct. The Court did not convict him at that point, on his own plea of guilty. It proceeded straight to mitigation by the accused. The case of Adan vs Republic is vivid on the right procedure of plea taking and here there was a legal procedural lapse.

10. Another issue that is vital is that the Court, though the accused was charged with a serious offence under Sexual Offences Act No 3 of 2006, of which attracted an imprisonment term of not less than 10 years imprisonment, and was unrepresented, failed to warn him of the consequences of the plea of guilty to the offence. In various decisions by the court such as Simon Gitau Kinene vs Republic [2016] eKLR;Fide Malecha Weluchi vs Republic [2019] eKLR and Bernard Injendi vs Republic [2017] eKLR, the Courts have emphasized that in serious offences of which are likely to attract a long custodial sentence, where the accused is unrepresented and wishes to plead guilty, the Court should warn him of the consequences of such plea. In this case the trial court did not do so. It’s on these two issues that I find the plea was equivocal. The Appeal therefore succeed. The sentence is set aside. There was no conviction. Fresh plea taking should be taken in a retrial with reference to Count 1. This court so orders.DATED, SIGNED AND DELIVERED AT MALINDI THIS 7TH DAY OF DECEMBER, 2022…………………………………………………S.M. GITHINJIJUDGEIn the Presence of;Appellant in personMs. Mkongo for state