[2017] KEHC 2814 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 21 OF 2015

PETERSON MWENDIA NGARI.................................APPELLANT

-VERSUS-

REPUBLIC............................................……............RESPONDENT

(An appeal from the conviction and sentence of the Principal Magistrate’s Court (M. Onkoba) at Gichugu, Criminal Case No. 169 of 2014 delivered on 8th June, 2015)

JUDGMENT

1. The appellant Peterson Mwendia NgarialiasKamuri was charged before the Senior Resident Magistrate’s Court at Gichugu Criminal Case No. 169 of 2014 with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code. The particulars are that on 17th March, 2014 at around 1. 00 a.m. at Kanjarara village, Mikarara sub location, Kabare location in Kirinyaga East District within Kirinyaga County jointly with others not before Court being armed with crude weapons namely panga, rungus and a claw bar robbed Patrick Chomba Nyaga Ksh.2,990/- a mobile phone Nokia aska 200 valued at Ksh.7000/- and a long trouser valued at Ksh.1000/- all valued at Ksh.10,999/- and immediately before or immediately after the time of the said robbery threatened to use actual violence to the said Patrick Chomba Nyaga.

2. The appellant pleaded not guilty and the matter proceeded to hearing. The prosecution called a total of five witnesses. The appellant was given a chance to cross-examine all the witnesses. After the prosecution closed its case the court made a ruling that a prima facie case had been established to warrant the appellant to be put on his defence. However, when the appellant was put on his defence, he indicated that he wanted to change his plea. The Court explained to the appellant the import of pleading guilty on a capital offence. The appellant requested the Court to allow him to plead guilty. The substance of the charge and every element of it thereof was read to the appellant in Kikuyu language which he said he could understand. He replied.

“It is true. I committed the offence against the complainant.”

The facts were read to him and he stated that the facts are correct. The Court then convicted him and proceeded to pass the death sentence as by law provided.

3. The appellant then filed this appeal raising two grounds namely:

(i) That the learned trial magistrate erred in both law and facts by not noting that he was not mentally stable when he changed plea.

(ii) That the learned trial magistrate erred in both law and facts by not subjecting him to mental assessment lest when he changed plea in disregard that he was charged with a capital offence.

4. The appellant applied to proceed by way of oral submissions. Directions were given that the appeal be disposed of by way of oral submissions. The appellant appeared in person while the State was represented by Mr. Sitati, prosecution counsel.

5. Though the prosecution had tendered evidence and closed its case. I did not analyse this evidence as it is not the evidence upon which the court relied on to convict the appellant.

6. The issue for determination is whether the plea was unequivocal.

7. The appellant submits that he had stayed for a long time in the prison waiting for his trial and so it was not possible for him to go and plead guilty. That the date he was called to give defence he was sick and after that he did not know what happened. That he stayed in prison due to sickness. That he was told by a prison officer that he was jailed.

8. The State opposed the appeal. The prosecution counsel submitted that during the defence hearing the appellant asked the Court to read the charge as he wished to change plea. The trial magistrate warned the appellant of the consequences of changing plea. The appellant insisted that he wished to change plea. The charge was read in the language that he understands, that is Kikuyu. He admitted the charge. Thereafter the facts were read to him. He admitted the facts. That all the time the appellant showed total coherence. There was no indication that he suffered any illness.

9. That the ground that he was not taken for psychiatric assessment cannot hold as there is no provision under the law requiring that a person charged with a capital offence be assessed by a psychiatrist. The appellant did not adduce any evidence to show that he was sick. There was no medical evidence from a doctor nor a relative to confirm.

10. The State further submitted that under Section 348 of the Criminal Procedure Code, the law is clear that no appeal can be entertained unless for legality of sentence. The trial magistrate had jurisdiction to try him. There is no illegality on the sentence. They pray that the appeal be dismissed.

DETERMINATION

11. I have considered the submissions. From the record, the appellant appeared before the trial magistrate on 23rd April, 2015 for the defence hearing. The appellant stated that he was ready to proceed. The case did not proceed as the prosecutor who had the conduct of the case was not present.

12. The matter came up again on 21st May, 2015. The appellant said he was not ready as he needed to prepare adequately. He requested for one month which the court allowed.

13. He went back on 4th June, 2015 when he asked the Court to read the charges to him afresh. All this time, the appellant was normal and the trial court did not see any behavior which could have prompted her to order that a mental examination be done. The request for the charges to be read came after the appellant was given one month upon request to go and prepare his defence. He may have done soul searching and decided to plead guilty.

14. From the record, the trial magistrate explained the appellant the full import of a plea of guilty in the capital charge. The trial magistrate must have warned the appellant that the offence carried a mandatory death sentence which is the sentence for robbery with violence.

15. The appellant stated that he knew the full impact of a plea of guilty. He knew the repercussions. He urged the Court to allow him to change plea. The appellant was fully aware of the consequences.

16. The trial magistrate satisfied herself that the appellant understands the consequences of plea of guilty in a capital offence. The trial magistrate who had the opportunity to see the appellant and observe his demeanor, did not see anything that could have prompted her to order for a medical examination. The appellant must have demonstrated traits of a normal person.

17. After the charge was read he pleaded guilty to the main charge of robbery with violence. The appellant stated that he committed the offence against the complainant. The prosecutor was not ready to give the facts. The facts were given five days later. The appellant said he was ready to receive the facts. This was on 8th June, 2015. It should be noted that the charges were read to him again and he pleaded guilty to the offence of robbery with violence. The facts were read to him and the appellant responded as follows:

“The facts are correct. I had participated in robbing the complainant on the material date and time”.

The appellant was then convicted on his own plea of guilty.

18. I have listed this chronology to show that the appellant appeared before the trial magistrate several times from the date he said he wished to change plea. He never exhibited any behavior worthy of note to the trial magistrate to suggest that the plea was not unequivocal. The appellant was clearly in his right senses on all the occasions he appeared before the trial magistrate. There is no requirement in the law for the trial magistrate to order a mental examination where an accused person wishes to plead guilty to a capital offence and in particular a charge of robbery with violence. The trial Court was under no obligation to order that the appellant be examined. The magistrate did not err in law and in fact. She took all the measures to ensure that the plea was unequivocal as clearly borne out by the record.

19. As rightly submitted by the State, there was no law requiring the trial magistrate to order a mental assessment on the appellant who was charged with a capital offence. The second ground of appeal must therefore fail.

20. The appellant has not shown that he was not mentally stable at the time he changed his plea. He did not produce any medical records nor call a witness. The trial magistrate had the chance to observe the appellant. The record does not show that the appellant had any mental problems. Even thereafter he has not been treated for any mental issues. At the hearing of this appeal he was perfectly normal and was able to submit in support of his case. I am of the view that the allegations by the appellant were an afterthought. The plea was unequivocal.

21. It has been held by the Court of Appeal that there is no law in Kenya to stop Courts form accepting a plea of guilty to capital offences. In the case of Paul Mutungi -V- Republic (2006) eKLR it was held:-

“There is no law in Kenya to stop the courts from accepting plea of guilty to capital offences. The courts can accept such a plea. However the law which has developed through the doctrine of precedents requires the courts to strictly bear in mind the need to ensure that such a plea, like any other, is taken in the language that the accused understands freely, preferably the language of the accused and that the words of the accused are recorded as close as possible to what the accused actually stated. It is also necessary that whatever the accused says in his plea and in mitigation is fully recorded in the proceedings. In offences carrying the death sentence, it is essential for the court to warn the accused of the consequences of his pleading guilty namely that he may be sentenced to death f he pleads guilty. In the case of Boit vs Republic (2002) KLR Volume 1 page 815, this Court faced a similar situation as it now before us”.

22. In the case the appellant had pleaded guilty to a charge of attempted robbery with violence. The Court of Appeal emphasized that Courts must ensure that the charge is read in a language that accused understands. In the present case the charge was read to the appellant in Kikuyu language which he could understand. The trial magistrate was alert to the need to ensure that the safeguards for unequivocal plea were strictly complied with. I reproduce the proceedings here for case of reference.

“4/6/2015

Before M. Onkoba – SRM

S.C. Kariuki/Sang

Court Clerk – Leah

Interpretation English/Kikuyu

Court:Hearing on 16th June, 2015.

Accused: I want the case or charges I am facing to be read over to me afresh. I do not intend to give any defence in this matter. I want to change my plea.

(Court takes time to explain to the accused the full import of a plea of guilty in this capital charge).

Accused: I know the full impact of a plea of guilty. I know the repercussions. I urge the court to allow me to change my plea.

Court: The accused person has demonstrated upon detailed explanation by the court, that he understands the consequences of a plea of guilty in this case. He has insisted that the charges be read over to him, and he changes his plea. Having ascertained that he understands the circumstances, I direct that the charges facing the accused to be read over to him in Kikuyu language which he says he understands.

M. ONKOBA

SRM

Main Count

Accused: It is true. I committed the offence against the complainant.

Prosecutor: The facts are not ready. I pray that the same be deferred until tomorrow.

Accused: No objection.

Court: Facts are deferred until 5/6/2015.

M. ONKOBA

SRM

4/6/2015

8/6/2015

Before M. Onkoba – SRM

S.C.- Kariuki/Sang/Kihara

Court Clerk – Leah

Accused present

Interpretation English/Kikuyu

Court: For facts

Prosecutor:The matter is coming up for facts.

Accused: I am ready to receive facts.

Court: The charges facing the accused to be read over to him in Kikuyu language, by explaining to him every element thereof;

Main Court

Accused: It is true. I had committed the offence against the complainant.”

“………..accused to suffer death. Right of appeal within 14 days.”

M. ONKOBA

SRM

8/6/2015

The trial magistrate complied with Article 50(2) of the Constitution which provides:-

“Every accused person has the right to a fair trial which includes the right

(a)……………………

(b) to be informed of the charge with sufficient details to answer it.

From the proceedings, it is clear that Article 50 (2) was complied with.

23. In the case of Boit -V- Republic 2002 KLR the Court of Appeal stated:

“There is no statutory provision to the effect that a person charged with an offence the penalty for which is death cannot plead guilty to such a charge. But as the court remarked in Kisang’s case, such cases are rare. They are indeed the exception rather than the rule. That being so, the courts have always been concerned that before a plea of guilty to such a charge is accepted and acted upon by any court, certain vital safeguards must be strictly complied with – and it must appear on the record of the court taking the plea that those safe-guards have been strictly complied with – and those safe-guards are that:

(i) The person pleading guilty fully understands the offence with which he is charged. The court before whom he is taken to be pleading guilty must in its record show that the substance of the charge and every element or ingredient constituting the offence has been explained to him in a language that he understands and that with that understanding and out of his own free-will the pleader admits the charge. This requirement applies not only to offences punishable by death but to all types of offences.

Section 77(2) (b) of the Constitution puts it this way:

“77(2). Every person who is charged with a criminal offence –

(a) –

(b) Shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence with which he is charged.”

We understand this section to mean that the detailed nature of the information to be given to the person charged and in a language that he understands to be the substance of the offence, and the elements or ingredients which constitute the same, the date on which the offence was committed, the approximate time when it was committed and the person or persons against whom the offence was committed. These are the requirements which the Court of Appeal for East Africa sought to codify in the case of Adan vs republic (1973) EA 445. As we have said this first requirement applies to any accused person taken to be pleading guilty to any crime, whether that crime be punishable by death or not.

(ii) Where the offence is one punishable by death, the court recording the plea of guilty must show in its record that the person pleading guilty understands the consequences of his plea. This requirement, as we have seen, was set out way back in 1946, in Kisang’s case, ante. We think this is an elementary requirement of common sense and fairness. We must not forget that under section 77(2) of the Constitution a person charged with an offence –

“Shall be presumed to be innocent until he is proved or has pleaded guilty.”to such a charge. Where the offence charged carried with it a mandatory sentence of death, then it is only fair that before an accused pleads guilty to the charge and thus puts his life on the line, he is informed about this and then left to make an informed choice on whether he voluntarily wishes to put his life on the line or whether he wishes to have those who make the allegation against him prove that allegation. If he is fully informed on all these matters and the record of the trial court shows that he has been informed but has nevertheless chosen to plead guilty then there cannot be any genuine complaint thereafter. Even the constitution itself does not debar anyone from pleading guilty to any offence whether punishable by death or otherwise.”

The principle enumerated in the above case are applicable in the case which was before the trial magistrate and indeed in all criminal cases though as it can be seen there are additional requirements in capital offences. The appellant submits that he did not know what was happening in Court. This is not however, borne out by the proceedings before the trial court. It should not escape my mind that the appellant pleaded guilty after all the evidence was adduced before the trial magistrate, the prosecution case closed and appellant put on his defence. He was familiar with the charge facing him and the evidence. He had opportunity to test the evidence in cross-examination and at the end of it pleaded guilty instead of giving a defence. Bearing this in mind and the warning by the trial magistrate of the consequences of the plea of guilty the plea was clearly unequivocal. It is only him who can tell why he opted out of giving a defence in favour of a plea of guilty.

24. In my view considering the record of the trial court, the warning given and the manner in which the appellant expressed himself after being warned, I hold that plea was properly taken as required in the case of Boit -v- R Supra and Adan -v- R which was quoted with approval.

25. On the ground that the trial Court should have called for a mental assessment test, I have already pointed out that the appellant was before the trial court for some time before he came up with the request for the charges to be read and pleaded guilty. From the record, he never exhibited any behavior that would have made the trial magistrate to see the need for a mental examination. In the case of Peter Ngang’a Nduta -V- Republic Criminal Appeal No. 208/2007 Court of Appeal Nairobi it was stated though no patent indication that the need arose for appellant to be subjected to mental examination:

“But we hasten to add that patent exhibitions alone are not alone the ground for a trial court to order a mental examination. For example, where it is brought to the Court’s attention that there is a history of mental illness on the part of the accused, mental examination may be warranted.”

26. Nothing was laid before the trial magistrate to warrant her to order a mental examination of the appellant. The trial magistrate had no reason to order a mental examination of the appellant.

27. All in all I am of the view that the plea was properly taken, the accused was warned of the consequences of pleading guilty and insisted that he wished to plead guilty. The trial Court properly followed the procedures before the plea of guilty was accepted. I find no reason to fault the manner in which the plea was taken and conviction entered. This appeal is without merits. I dismiss it.

Dated and delivered at Kerugoya this 9th day of October, 2017.

L. W. GITARI

JUDGE

Read out in open court, Mr. Sitati P/C, Appellant present, court assistant Naomi Murage this 9th day of October, 2017.

L. W. GITARI

JUDGE

9. 10. 2017