[2004] KEHC 589 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL APPLICATION NO. 32 AND 33 OF 2004

PETER WANJOHI)……………………..………APPLICANTS

PETER MWANIKI MWANGI)

VERSUS

REPUBLIC……………………………..………RESPONDENT

RULING

The Applicants Peter Wanjohi and Peter Mwaniki Mwangi were charged and convicted of the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code. They were convicted on their own plea of guilty. They were sentenced to serve terms of six months imprisonment on the 29th of March 2004. The Applicants were aggrieved by the said conviction and sentence and have appealed to this Court. Contemporaneous with filing the Appeals, the Applicants have made an application for bail pending appeal. They filed two separate applications which were consolidated as one for the purposes of hearing.Counsel for the Applicants Mr. Ngure argued that the Applicants ought to be released on bail pending appeal because if they are not released by the time their Appeals will be heard they would have served their term in prison. He also argued that the Appeals filed by the Applicants have a high chance of succeeding in that they had been convicted on a plea of guilty that was equivocal. He further submitted that the language which the plea was taken was not specified by the Court. He also submitted that the facts narrated to the Court by the Prosecution did not support the charge of assault causing actual bodily harm. He therefore submitted that the application for bail pending the hearing of the Appeal ought to be granted.

Mr. Koech appearing for the State opposed the Application. He submitted that the plea was properly taken by the trial Magistrate. He further submitted that the Applicants pleaded guilty to the charge having been aware of the charge facing them. He submitted that the Applicants confirmed the facts when the same were read to them. Mr. Koech further argued that the plea taken by the Applicants was unequivocal as clearly shown by the record of the Court. He stated that the Applicants were charged with the offence of assault causing actual bodily harm which charge the Applicants pleaded guilty to. He further argued that all the elements required in law to prove the charge of assault were present including the P3 which confirmed that the Complainant was injured and was treated. He urged this Court to dismiss the Application as lacking merit.

I have considered the rival arguments of the Counsel for the Applicants and the State Counsel.

The Appeals filed by the Applicants basically raise the issue of whether or not the plea taken by the trial Court was unequivocal as laid down by the celebrated case of Adan – versus- Republic [1973] E. A. 445. I have read the proceedings of the Lower Court and I am of the humble opinion that apart from the fact that the language which the plea was taken was not stated, every other legal requirement was complied with. The charge was read to the Applicants and all the elements of the said charge explained to the Applicants who pleaded guilty to the same. The facts in support of the charge were read to them by the Prosecution which facts the Applicants confirmed to be true. From the record of the trial Court it is clear that the Applicants understood the nature of the charge facing them. They also understood the consequences of their action as is evident from their mitigation before sentence by the trial Court. While it is true that the language which the plea was taken was not mentioned, in the instant case, the Applicants did not suffer any prejudice as they seem to have been aware of the nature of the charge facing them. The purpose of the requirement that the language should be stated in the proceedings is so that in the event of an accused person saying that he did not understand the charge because of a language barrier, such an accused person can seek redress from a higher Court. It is therefore advisable, and indeed, it is desirable that every Court should note the language used in the taking of a plea. As I stated earlier in my ruling, the Applicants understood the nature of the charge facing them and pleaded guilty to the same. The sentence that was imposed by the trial Court was not excessive in the circumstances of this case to warrant interference by this Court during the hearing of the Appeal. I therefore find that the essential ingredient as laid down in the case Somo –versus- Republic [1972] E. A. 476 that the Applicants have to prove that the Appeal has an overwhelming chance of success has not been satisfied. It is not necessary therefore to consider the other principles laid down by the above decision. I have read the two decisions referred to me by Learned Counsel for the Applicants and I am not persuaded that they apply in the instant case.

I, therefore find that the Application for bail pending Appeal filed by the Applicants lack merit and the same is dismissed.

DATED at NAKURU this 20thday ofApril 2004.

L. KIMARU

AG. JUDGE