[2015] KEHC 363 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

REVISION CASE NO. 1 OF 2015

REPUBLIC………………………………..……….PROSECUTOR

VERSUS

IQRA ABDULLAHI MOHAMED..................................ACCUSED

RULING ON REVISION

By a letter dated the 7thday of October, 2015, Mulinga Mbaluka Advocateurged the court to invoke the provisions of Section 362of theCriminal Procedure Code.

In the matter, Iqra Abdullahi Mohamed(Applicant) and Anotherwere charged with the offence of being unlawfully present in Kenya contrary to Section 53(1)(j)as read with Section 53(2)of the Kenya Citizenship and Immigration Act No. 12 of 2011. The particulars of the offence were that on the 28thday of August, 2015at Mwingi Townshipin Mwingi Sub-Countywithin Kitui Countybeing Somali Nationalswere found aboard a motor-vehicle registration number KBX 835H Volvo FH Lorryfrom Garissato Nairobibeing unlawfully present in Kenya in contravention of the Immigration Actin that they had no valid pass or permit authorizing them to be in Kenya.

Both of them pleaded guilty to the charge, they were convicted and sentenced to serve one (1) year imprisonment.

The Applicant now seeks review/revision of the orders on the grounds that:

The plea was not unequivocal as:

The alleged interpreter was not qualified and his name, ethnicity, place of work and qualification to translate from Kiswahili/English/Kisomali was not indicated.

The court interpreter was of a different Somali dialect.

The procedure on how the proceedings were conducted was erroneous.

Sentencing the Applicant to one (1) year imprisonmentwas erroneous.

I have examined the court record in an endeavor to satisfy myself with the need to invoke powers conferred on me by Section 362as read with Section 364of the Criminal Procedure Code.

It is argued that the plea taken is unequivocal. Principles for consideration when taking plea were enunciated in the case of Adan vs. Republic (1973) EA 445where the court held:

“(i) The charge and all essential ingredients of the offence should be explained to the accused in his language or in a language that he understands.

(ii) The accused’s own words should be recorded and if they are an admission a plea of guilty should be recorded.

(iii) The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts.

(iv) If the accused doesn’t agree with the facts or raises any question of his guilt his reply must be recorded and the change of plea entered.

(v) If there is no change of plea a conviction should be recorded and a statement of facts relevant to sentence together with the accused’s reply should be recorded.”

The Applicant was a person of Somali Originas stated by her counsel in his letter. The court record indicates – interpretation was in Somali Language.The interpreter was known as Mohamed.It is further indicated that the charge was read in Somalia language that the Applicant understood and she responded thereto.

Following the admission of the charge, the facts of the case were presented by the Prosecution and the Applicant on being given an opportunity to respond stated thus:

“Facts are correct”

The court entered a plea of guilty, found the Applicant guilty on his own plea and accordingly convicted her. The procedure adopted is what is outlined in Section 207 of theCriminal Procedure Code.The trial court can therefore not be faulted as the plea was taken in accordance with the law. It was unequivocal.

It has been alleged that there was failure of communication between the court and the Applicant because the dialect that was spoken was not indicated. The record reflects the language used – namely, Somali.The facts of the case were presented. The accused admitted what was stated and she was given an opportunity of mitigating. She sought leniency and even told the court her place of origin.

In the case of Said Hassan Nuno vs. Republic (2010)eKLRthe court stated thus:

“At each stage of the proceedings a court clerk was in attendance and we take judicial notice that one of the core duties of a court clerk is to offer interpretation services to accused or even to the court where it does not understand the language of the accused or a witness to the case.”

The court clerk having discharged his duties appropriately the allegation fails.

The sentence passed is stated to be excessive. In the case of Ogalo Son of Owoura vs. Republic (1954) 21 EA CA 270the Court of Appeal stated thus:

“The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by the trial Judge unless as was said by in James V Rex (1950) 18 EA CA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, he would also add a third criterion, namely, the sentence is manifestly excessive in view of the circumstances of the case, R – Vs Shershewsity (1912) CCA 28 T.L.R. 364. ”

The sentence provided for the offence the Applicant and her co-accused were charged with attracts a fine not exceeding five hundred thousand shillingsor to imprisonment for a term not exceeding three yearsor toboth (see Section 53(2) of the Kenya Citizenship and Immigration Act No. 2 of 2011).

It has been stated that it was erroneous on the part of the magistrate to imprison the Applicant for one (1) yearwithout an option of fine.

The sentence imposed was of course within the law. However the accused persons having been first offenders, an option of fine should have been considered.

In the premises, having satisfied myself of propriety of the sentence imposed against both offenders, I exercise the discretion bestowed upon me by Section 364(1)(a)of the Criminal Procedure Codeby setting aside the sentence meted out in respect of both convicts and substitute it with a fine of Kshs. 60,000/=or Six (6) months imprisonment in default.

It is so ordered.

DatedandSignedat Kituithis 30thday of November,2015.

L. N. MUTENDE

JUDGE