[2018] KEHC 5061 (KLR)
The court found that the lower court proceedings were fundamentally flawed because the accused was not afforded the statutory procedure for plea taking, specifically the requirement that the prosecution state the facts after a plea of guilty and that the accused be given an opportunity to mitigate before sentencing....
Source-derived case information.
- Citation
- [2018] KEHC 5061 (KLR)
- Parties
- Appellant: Rashid Mwero; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 353 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- conditional discharge granted; accused released forthwith
- Judges
- CA Otieno
- Legal Topics
- Plea Taking, Right to Mitigation, Irregular Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rashid Mwero
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the plea of guilty was validly entered in accordance with section 207(2) and (3) of the Criminal Procedure Code.
- 2 Whether the accused was denied the right to mitigation before sentencing.
- 3 Whether the irregularities in the proceedings warranted a retrial or other remedy.
Ratio Decidendi
The court found that the lower court proceedings were fundamentally flawed because the accused was not afforded the statutory procedure for plea taking, specifically the requirement that the prosecution state the facts after a plea of guilty and that the accused be given an opportunity to mitigate before sentencing. These omissions rendered the proceedings irregular and invalid. While such irregularities would ordinarily warrant a retrial, the court considered the time already served by the accused and the minor nature of the offences, concluding that the accused had learned his lesson. The court therefore opted for a conditional discharge rather than ordering a retrial or continued...
Court Disposition
conditional discharge granted; accused released forthwith
Orders
- The accused is released forthwith on condition that he shall not commit a related offence for the next twelve months.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL REVISION NO. 353 OF 2018
RASHID MWERO........................APPEALLANT
VERSUS
REPUBLIC....................................RESPONDENT
R U L I N G O N R E V I S I O N
1. The lower court file has been availed for perusal as ordered on the16/7/2018. Having perused the same I do find that:-
i) The plea was never validly entered because the accused having said it is ‘true’ to all the counts, the prosecution was never called upon to state the facts of the offence as to enable the accused to consider changing or confirming his plea. That was to this court in violation of the provisions of 207(2) & (3) Criminal Procedure Code as explained in the decision of Aden vs Republic [1973] EA 445.
ii) In addition even if the plea of guilty was validly entered, the accused person had a right to offer mitigation before the sentence was metted out. That was not availed to him.
2. Those flaws in the proceedings, are enough for me to find that theproceedings were not regularly conducted and that the accused should be accorded another chance to have his plea regularly recorded. This is a matter that calls for a retrial.
3. However in this case, I note that the accused person has servedsome 15 days out of the aggregate 2 months imprison sentence metted. That when taken together with the nature of the offences charged, I do consider that the accused has learnt his lesson.
4. I am minded to release him forthwith but on conditional dischargethat he shall not commit a related offence for the next twelve months.
5. It is so ordered.
Dated and delivered at Mombasa this 25th day of July 2018.
P.J.O. OTIENO
JUDGE