[2003] KEHC 367 (KLR)
The conviction and sentence were set aside because the record did not indicate that the charge was read and explained to the appellant in a language he understood, rendering the plea equivocal and the process irregular. Additionally, the facts as presented did not disclose the offence of assault causing actual...
Source-derived case information.
- Citation
- [2003] KEHC 367 (KLR)
- Parties
- Applicant: Paul Lenguro; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 375 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction_and_sentence_set_aside
- Judges
- JW Lessit
- Legal Topics
- Plea Taking Procedure, Assault Offences, Conviction and Sentence, Equivocal Plea
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Lenguro
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge was properly read and explained to the appellant during plea taking.
- 2 Whether the facts as presented disclosed the offence of assault causing actual bodily harm under Section 251 of the Penal Code.
- 3 Whether the trial court erred in failing to consider reconciliation under Section 176 of the Criminal Procedure Code.
Ratio Decidendi
The conviction and sentence were set aside because the record did not indicate that the charge was read and explained to the appellant in a language he understood, rendering the plea equivocal and the process irregular. Additionally, the facts as presented did not disclose the offence of assault causing actual bodily harm but rather common assault, making the charge and sentence inappropriate. The trial court also failed to consider reconciliation as required under Section 176 of the Criminal Procedure Code. These procedural and substantive errors invalidated the conviction and sentence.
Court Disposition
conviction_and_sentence_set_aside
Orders
- The conviction and sentence imposed are set aside.
- The appellant is to be set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN TE HIGH COURT OF KENYA AT NAKURU CRIMINAL APPEAL NO.375 OF 2003
PAUL LENGURO……………………………………APPLICANT
VERSUS
REPUBLIC…………………………………….……RESPONDENT
J U D G M E N T
The applicant has filed this appeal through his advocate challenging both the conviction and sentence imposed against him in the Senior Resident Magistrate’s Court at Maralal. He had been charged with the offence of ASSAULT CAUSING ACTUAL BODILY HARM contrary to Section 251 of Penal Code.
The first ground of appeal was that the charge was never read to the Appellant. That the record does not indicate at what stage the charge was read. All it indicates is the appellant’s response in which he admitted assaulting his father who was the complainant in the case.
The Learned State Counsel conceded that point adding that for that reason alone the plea was equivocal.
The other ground raised was that the Learned Trial Magistrate gave no consideration to the relationship between the complainant and the appellant nor considered reconciling them under Section 176 of the Criminal Procedure Code. The Learned Counsel conceded both points and added that C.S.O. was also a good alternative to reconciliation.
I have considered this appeal. I do agree with both counsels that it is not indicated anywhere that the court ever read the charge to the appellant. Further and equally important, I am not satisfied that the facts as led by the prosecution disclosed the offence of Assault occasioning actual bodily harm. The injury or harm occasioned to the complainant, as far as the facts of the case are concerned were pains.
It reads in part:-
“At that moment, the accused person started kicking the complainant in the stomach. The complainant received severe pains…”
The facts of the case did not disclose the offence charged. It seems rather to establish the charge of common assault under Section 250 of the Penal Code. In the circumstances the charge was also wrong and the sentence excessive.
The failure to indicate whether the charge was read to an accused person is a serious omission. Not only should the court state that the charge was read over to the accused but it must go further to state the language in which it was read and explained to him and whether or not he understood that language. See Law, Miller and Potter, JJA., inOMBENA –V- REPUBLIC. 1981 KLR 450. At page 455 they set out the steps a trial court should follow while taking a plea from an accused person. Clearly in this case, these were not followed rendering the plea equivocal and the whole process irregular.
Accordingly I set aside the conviction and sentence imposed herein and order that the appellant be set at liberty forthwith unless otherwise lawfully held.
Orders accordingly.
JESSIE LESIIT
JUDGE
Dated, signed and delivered this 14th day of August, 2003, at Nakuru.
Delivered in presence of
JESSIE LESIIT
JUDGE