[2022] KEHC 2424 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

HIGH COURT CRIMINAL REVISION CASE NO. E132 OF 2021

PATRICK MUTUA PIUS.............................APPELLANT

VERSUS

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

R U L I N G

1. Patrick Mutua Pius, the applicant herein, was charged with the offence of robbery Contrary to Section 295 as read with Section 296 (1) of the Penal Code. The particulars of the charge are that on 7th of May 2018 at Kenya Commercial Bank Kitui Branch entrance, within Kitui Township within Kitui County, he robbed Rebecca Mutano Muema of cash Kshs. 1. 4 million and at or immediately before or after the time of such robbery threatened to use actual violence against the said Rebecca Mutanu Muema.

2. When the applicant was presented to the trial court on 14th May 2018 for plea, he pleaded guilty and was convicted on his own plea of guilty.

3. Upon conviction on the charge facing the applicant the record shows that the facts were read out to the applicant upon which he conceded that the facts as read stating that they were correct and was then convicted and sentenced to serve 7 years’ imprisonment.

4. The applicant has now moved this court under Section 362 of the Criminal Procedure Code for revision on the following grounds namely

i. The charge was defective and duplicitous

ii. The applicant was charged with stealing a specific amount of money which though allegedly recovered was not presented in court as evidence as it had already been banked by the alleged owner

iii. The evidence tabled in court was ambiguous

iv. The plea of guilty was improperly recorded as the applicant did not plead guilty and the statement of facts was not read out fully to the accused person

v. The court failed to inform the accused person of his right to be represented by a lawyer in a charge as serious as robbery

vi.In any event the applicant has served a larger part of the sentence, has reformed and ought to be considered for reduction of the sentence.

5. In his submissions, the applicant takes issue with the charges preferred against him. He submits that there was duplicity of charges in the charge sheet hence making it defective. He submits that the statement; “…at or immediately before or immediately after the robbery…” amounted to duplicity of the charge. He has relied on the case of Timothy John Victor versus Republic [2016] eKLRwhere the accused had been charged with the offence of “Importing or exportation of firearms contrary to Section 27(1) (9) as read with section 27(3) of the firearm Act Cap 114 Laws of Kenya.” The court found that there was indeed duplicity when drafting a charge. The rationale relied upon by the court was that the accused could only be charged with either importing or exporting a firearm. The two words, ‘‘import’ & export’’ the court found could not be used in one count as at any one given time the accused could either have been importing and exporting firearms but not both.

6. He has also placed reliance on the East African Court of Appeal’s decision in Cherere S/O Gukuli versus Republic (1955) E.A 478 quoted in Josephat Shikuku versus Republic (2010) eKLR where the court found that duplicity in a charge made it defective as it presents a situation which the accused person is unsure of the charge he is pleading to.

7. The applicant further submits that the charge sheet was amended irregularly as it was unclear when it was amended and by whom.

8. He also takes issue with the evidence relied on by the prosecution. He submits that the prosecution only submitted a bank deposit slip as exhibit of the alleged stolen amount but they did not present the actual money stolen and recovered amount as evidence in court. He had relied on the case of Samson Omondi Oduor versus Republic (2016) eKLR in which the accused had been charged with the offence of robbery with violence. The court held that where exhibits have been recovered the prosecution should always produce the same.

9. The applicant submits that the plea entered was equivocal as he replied ‘true’ when the charges were read out to him. The applicant further submits that the trial court failed to warn him of the consequences of a guilty plea before it proceeded to record his response to the charges. He has relied on the case of Elijah Njihia Wakianda versus Republic 2016 (eKLR) where the Court of Appeal quashed a conviction and ordered a retrial after it found that although the appellant had been convicted in his own guilty plea, his plea was equivocal. The court noted that the Appellant had a history of mental illness, that the court did not explain to the Appellant the consequences of entering a guilty plea He also relied on the case of Fidel Malecha Weluchi Versus Republic [2019] eKLR where the high court expressed similar sentiments on plea taking.

10. The applicant also takes issue with the sentence meted out and submits that the same was harsh and failed to take into account that he was a student at Chuka University. He has relied on the case of Felix Otieno Olouch versus Republic (2017) eKLRin that regard.

11. I have considered this application for revision. I have called for the lower court file to satisfy myself as to the correctness, legality and propriety of the proceedings and the judgement of the trial court. The provisions of Section 362 of the Criminal Procedure Code provides: -

‘‘c. The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.’’

12. The applicant submits that the charge sheet was defective and that it was irregularly amended. He further states that the plea taken was not unequivocal and that the exhibits were not tendered.

13. I will begin with the charge sheet. The provisions of Section 134 of Criminal Procedure Code gives guidelines on what the charge sheet should comprise and how it be drafted it states: -

‘‘Everycharge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.’’

14. It is also important to take cognizance of the constitutional provisions on what constitutes a fair trial. The constitution provides that every accused person has a right to a fair trial which right inter alia include

‘‘to be informed of the charge with sufficient detail to answer it.’’

15. The question posed in this application is whether the charge sheet presented to trial court complied with legal requirements in respect to clarity and correctness, legality and propriety. The applicant contends that there was duplicity and has gone ahead to cite a number of authorities but I am not persuaded. The applicant faced only one count, Robbery Contrary to Section 295 as read with Section 296 (1) of the Penal Code. If there were 2 counts where the elements in the first count is duplicated in say the 2nd count, then he could raise duplicity as a defect in the charge. The applicant in this matter submits that there was mis-description of the particulars of the charge where is read ‘‘at or immediately before or immediately after the robbery…….... According to the applicant, that statement presented a situation where it was clear what the applicant was pleading to. But I disagree. The words ‘‘and, at or immediately before or immediately after…’’ are exact words used in the statute creating the offence. Section 295 of the Penal Code provides;

‘‘(295) Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.

296 (1)Any person who commits the felony of robbery is liable to imprisonment for fourteen years.’’

Section 296(1)Provides the sanction or penalty and it states that anyone who commits the felony of robbery is liable to imprisonment for fourteen years’’. The trial court used his discretion under Section 23 of Penal Code and gave 7 years’ imprisonment upon taking into consideration mitigating factors. The sentence was therefore legal and cannot be faulted on the ground of legality or propriety.

The words ‘‘at or immediately before or immediately after the robbery’’ did not create any uncertainty at all to the applicant. He was fully aware of the offence for which he was charged with and there was no uncertainty on the particulars read out to him.

16. I have looked at the charge presented to the trial court and the same in my view was framed in accordance with Section 295 of the Penal Code. The elements of the offence were clearly revealed by the charge. The framing of the charge did not create confusion in the mind of the applicant creating a situation that can be said that he was unaware of what he was pleading to. He was caught in the act of robbery. He had snatched a bag containing Kshs. 1. 4 million and was in the process of getting away when alarm was raised and with assistance of the members of the public, he was cornered caught and later charged with the offence. The money was recovered in full and handed over to the complainant who deposited it immediately and a deposit slip was tendered as evidence. The applicant admitted to the facts presented. He understood the facts clearly and upon conceding the prosecution was under no obligation to tender the recovered money as exhibits. This court is satisfied that the charge was proper and the plea taken was certainly unequivocal.

17. On the question of the time of the robbery as per the charge visa viz the time they recovered money deposited, this court is not persuaded that the difference of the time indicated caused prejudice to the applicant. The particulars/or facts presented to court indicates that the robbery happened at around 9:30am while the deposit slip indicates that the money was deposited at around 9:26am which I find to be around 9:30 am. The defect in my view is minor and curable under Section 382 of the Criminal Procedure Code. The difference of 4 minutes did not occasion any prejudice to the applicant.

18. This court has also considered the question of amendment carried out and whether the amendment occasioned the applicant miscarriage of justice. The charge sheet as initially drawn indicated ‘‘Robbery with violence contrary to Section 296 (1) of the Penal Code. It was amended to read ‘‘Robber contrary to Section 295 as read with Section 296 (1) of the Penal Code.’’ The element of violence was deleted with the amendment and the charge reduced to a simple robbery with of course the attendant less severity of the sentence. Though it is not clear when the amendment was done (because the record of proceedings does not indicate,) it is apparent that the charge read to the applicant was the amended one because, when the applicant pleaded guilty he was sentenced under Section 296 6(1) rather than Section 296 (2). The amendment should of course have been done better and in neat way rather the casual manner it was done but the applicant benefited from that casual amendment because of the attendant lesser punishment. If the amendment was done after the plea had been taken I would have found that the same was irregular for not complying with the provisions of Section 214 of the Criminal Procedure Code which provides how amendment of a charge should be carried out. It provides: -

‘‘Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:

Provided that—

i. Where a charge is so altered, the court shall thereupon call upon the accused person to plead to the altered charge

ii. where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate, and, in the last-mentioned event, the prosecution shall have the right to re-examine the witness on matters arising out of further cross-examination.’’

19. The above provision is not relevant to the amendment carried out in this instance because the same was carried out before the plea was taken. The amendment was regular and I do not find anything illegal about it.

20. I have already alluded above that the charge was read over to the applicant clearly including the particulars. The record indicates that the language used was Kiswahili. The applicant states that he is a University Student at Chuka University which means that he had no problem with the language used. As a matter of fact, no issue has been raised on the language used by the trial court. The applicant understood Kiswahili well.

21. He has however claimed that the trial court did not warn him of the gravity of the charge leveled against him. The provision of Section 207 of the Penal Code obligates the trial court to ensure that an accused understands the nature of the charge and is required to record his response clearly. The Section reads: -

‘‘If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary:

Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded.’’

22. Taking of pleas and recording what an accused person says must be done in a careful manner and trial courts should avoid casual approach that is often caused by large number of pleas taken on a given date. In Adan versus Republic (1973) EA 445the court outlined the importance of taking pleas.

‘‘When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilty, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused's reply must, off course, be recorded.’’

23. The trial court in this instance recorded the response of the applicant when the charge was read over to him and the record indicates that he responded ‘true’ upon which the facts were presented and when the facts were read the applicant replied ‘‘the facts are correct’’.

24. The trial court then entered a plea of guilt and gave the prosecution a chance to present previous criminal record if any before the applicant was given a chance to mitigate. The process in my view met the threshold of ensuring that the plea taken was unequivocal though the trial court could have done better by ensuring that the applicant understood the implications of plea of guilt. Court have in some instances taken the position that in situations where the consequences of guilt plea are dire it is imperative to caution the accused and record the response before entering a pela of guilt which in my view in good or sound practice. In Elijah Njihia Wakianda versus Republic [2016] eKLR. The court of Appeal made the following observations: -

“……...We also think that the elements of the offence are not complete if the sentence, especially if it is a severe and mandatory sentence, is not brought to the attention of the accused person. One surely ought to know the consequences of his virtual waiver of his trial rights that the Constitution guarantees him. That did not occur here and yet the appellant was unrepresented calling upon the trial court to be particularly solicitous of his welfare. The officer presiding is not to be a mere umpire aloofly observing the proceedings. He is the protector, guarantor and educator of the process ensuring that an unrepresented accused person is not lost at sea in the maze of the often- intimidating judicial process…”

25. In this instance as I have noted the consequences of plea of guilty was lesser as compared with the serious or capital charge of robbery with violence. The circumstances obtaining also showed that the applicant though unrepresented was fully aware of the charge facing him and knew that what he had committed an offence. In my view the way the plea was taken, met the legal requirement though as I have stated above, the trial court should have done better and in fact should aspire to do better in order to avoid matters being escalated to appellate court unnecessarily. I am however satisfied that the omission by the trial court in not cautioning the applicant did not occasion miscarriage of justice. I do not find that to be sufficient basis to review the conviction and sentence meted out. It is evident that the applicant after finding himself on the wrong side of the law tried any possible way to find a twig to hang on to avoid being swept by the tide of justice.

26. The applicant has also pleaded with this court to be lenient to him and find that the time spent in prison be considered sufficient but as I have found out above, the offence be committed attracts a maximum of 14 years. The trial court used his discretion upon considering mitigating factors and handed him 7 years which is half the prescribed maximum sentence. The applicant has also not exhibited supporting documents showing that he has fully rehabilitated and transformed as a person.

The upshot of this is that this court finds no merit in this application for revision. The same is disallowed.

DATED, SIGNED AND DELIVERED AT KITUI THIS 9TH DAY OF FEBRUARY, 2022.

HON. JUSTICE R. K. LIMO

JUDGE