[2022] KEHC 15420 (KLR)

Republic v Mugama (Criminal Case E070 of 2021) [2022] KEHC 15420 (KLR) (17 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15420 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Case E070 of 2021

RPV Wendoh, J

November 17, 2022

Between

Republic

Prosecutor

and

Jackson Aginga Mugama

Accused

Judgment

1. On March 15, 2021, the appellant, Jackson Aginga Mugama was arraigned before the Hon Areri, Principal Magistrate Migori, charged with the offence of rape contrary to section 3 (1) (a) (b) (3) of the Sexual Offences Act. The particullars of the charge were that on March 7, 2021 at [particulars withheld] village in Uriri Sub –county, intentionally and unlawfully caused his penis to penetrate the vagina of BHJ withiout her consent.

2. In the alternative, the appellant was charged with the offence of committing an indecent act with an adult contrary to section 11 (a) of the Sexual Offences Act. The appellant pleaded guilty to the main charge and was accordingly convicted on his own plea. The appellant was sentenced to serve ten (10) years imprionment. No finding was made on the alternative charge.

3. The appellant is aggrieved by the the said conviction for reasons that the court violated his rights under articles 50 (2) (g) and (h) of the Constitution.

4. He also complains that the sentence of ten (10) years is excessive and harsh and prays that the conviction be quashed and sentence be set aside or the court do order a retrial or reduction of the sentence.

5. The prosecution counsel, Mr Mulama conceded the appeal for the reason that the appellant having been charged with an offence of rape, an offence that carries upto life imprisonment, it was the duty of the trial court to inform the appellant of the consequences of the plea which included his rights under article 50 (2) (g) and (h) of the Constitution. He urged this court to order a retrial.

6. Section 348 of theCriminal Procedure Code bars any appeal where an accused has pleaded guilty and convicted except as to the extent and legality of the sentence. Section 348 of the Criminal Procedure Code provides as follows;-“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.”

7. The court considered the above provsion in the case of Odhiambo Olel vs RepublicCriminal Appeal No 54 of 1989 (1989 KLR 444). The Court of Appeal held;-“Where a plea is unequivocal, an appeal against conviction does not lie. Section 348 of the Criminal Procedure (cap 75) does not mearly limit the right of appeal in such cases but bars it completely”

8. It follows that an appellant is barred from challenging the conviction following a plea of guilty and his only recourse is to challenge the extent or legality of the sentence.

9. However, if the court inquires and finds that the plea was not unequivocal, or that the facts did not constitute the offence as charged, then the court can address itself on the issue of conviction.

10. In Alexander Lukoye Malika =vs=Republic (2015) e KLR, the Court of Appeal concidered situations when a conviction arising from a plea of guilty can be interferred with. The court said as follows;-“A court may only interfere with a situation where an accused person has pleaded guilty to a charge where the plea is equivocal, ambigious, or unfinished such that the trial court erred in treating it as a plea of guilty. Another situation is where an accused person pleaded guilty as a result of a mistake or misapprehension of the facts. An appellate court may also interfere where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to the law. Also where upon admitted facts the appellant could not in law have been convicted of the offence charged”

11. From the above analysis by the Court of Appeal, where a plea is equivocal, the court has a duty to intervene.

12. In the present case, the record of appeal indicates that the appellant was unrepresented when he appeared before the court for plea. The the substance of the charge was read to him, and he replied,“Ni ukweli (it is true)."

13. The court entered a plea of guilty. The prosecutor went ahead and read the facts to him and at the end, it is recorded that accused stated-“The facts are correct”

14. The court convicted the appellant on his own plea of guilty and went ahead to impose the sentence after taking the appellants mitigation.

15. The appellant now complains that being unrepresented, he did not understand the charge or what was required of him. That is why he wants the conviction quashed.

16. This being a first appeal, this court is enjoined to review the whole case before the trial court and arrive at its own determiantion as was held in Okeno =vs= Republic (1971) EA 32.

17. In taking of plea, where a person pleads guilty, the plea court is guided by the celebrated case of Adan =v= Republic(1973) EA 445 where the court set out the steps to be followed as follows ;-"The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;(ii)The accused’s own words should be recorded and if they are on 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 add any relevant facts;(iv)If the accused does not agree with the facts or raises any questions of his guilt, his reply must be recorded and change of plea entered;(v)If there is no change of plea, a conviction should be recorded and a statement of the facts relevant to sentence together with the accused’s reply should be recorded.”

18. The Court of Appeal in Osike Emongonyang and 2 others CRA 69 of 1990, urged the courts to exercise caution in accepting a plea of guilty particularly in capital offences and I would add in such cases here rape, defilement which carry a maximum sentence of life imprisonment. The court said;-“No matter what may have been the case before, it is to us now well settled and for obvious good reasons, that a court these days should not and will not as a matter of course, accept a plea of guilty to a charge of murder which carries the mandatory capital sentence, without first warning the accused person of, and explaining to him fully, the consequences of his plea of guilty. Similarly in this day and age, where the mandatory sentence upon conviction of the offence with which the appellants were charged is the death sentence, we are of the view that even if the plea of guilty is to be accepted, it must only be done after due warning has been given to the accused person of the consequences of pleading guilty, so that he may fully consider the full implications of the step that he wishes to take.”[emphasis is mine].

19. In Abdallah Mohammed v Republic [2018] eKLR the court stated that:-“In a case where an accused person who is undefended pleads guilty to a charge, the court has a duty to ensure that the plea is unequivocal. As pointed out, the Appellant had no legal representation and the trial court ought to have taken steps to ensure that the Appellant understood every element of the charge and the facts read out to him. He also ought to have been warned, and that warning captured on record, that the offence he was about to plead to carried a prison sentence of not less than fifteen years. In my view, extra caution includes the question as to whether or not the facts as read out are true and whether the accused person would wish to make any comment. In fact an accused person should be asked what he means by saying that the charge read to him is true. His explanation should then be captured on the record so as to form part of his plea. From the record, it is apparent that the Appellant was just but a lad aged 21 years and the trial court ought to have gone the extra mile to ensure he understood the consequences of entering a plea of guilty.”

20. The court in Abdalla Mohammed case (above) also adopted the finding of the court in KinenevRepublic [2016] eKLR where the court held thatFinally, courts have always held that extra caution needs to be taken in the case of undefended defendants who plead guilty. I have previously held that where an accused person is unrepresented, the duty of the court to ensure the plea of guilty is unequivocal is heightened. In Paulo Malimi Mbusi v R Kiambu Crim App No 8 of 2016 (unreported) this is what I said and I find it relevant here:In those cases [where there is an unrepresented accused charged with a serious offence], care should always be taken to see that the accused understands the elements of the offence, especially if the evidence suggests that he has a defence.….To put it plainly, then, one may add that where an unrepresented accused person pleads guilty to a serious charge which is likely to attract custodial sentence, the obligation of the court to ensure that the accused person understands the consequences of such a plea is heightened. Here, the court took no extra effort to ensure this. In these circumstances, given the seriousness of the charge the court was about to convict and sentence the accused person for, it behooved the court to warn the accused person of the consequences of a guilty plea. ”

21. Guided by the above cited decisions, in cases where an accused is unreprsented and he is charged with a serious offence and he pleads guilty, the court must take extra caution to ensure that the accused undersrands all the elements of the offence and the consequenceas of pleading guilty. The court has the duty to protect the accused’s right to fair hearing and must adhere to those details.

22. In the instant case, the record is clear that the plea court did not warn the appellant of the consequences of pleading guilty to this very serious offence which carried a life sentence. The omission is so grave that it renders the plea as equivocal.

23. The appellant also complains that article 50 (2) (g) and (h) were violated. Article 50 provides for the rights of an acused that guarantee fair trial.Article 50 (2) (g) and (h) provides as follows;-"50(2)Every accused person has the right to a fair trial, whichincludes the right-(g)to choose, and be represented by an advocate, and to be informed of this right promptly.(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of his right promptly."

24. By dint of article 25 of the Constitution, the right to fair hearing guranteed under article 50 (2) can not be alienated. An accused has to be informed of his right to counsel, promptly, that is before plea or soon thereafter so that he can decide whether or not he requires services of counsel or needs to seek legal aid through the legal aid committee.

25. In the case of Chacha Mwita =vs= Republic CRA 33/2019 eKLR, J Mrima discussed in detail the effect of non compliance with article 50 (2) (g) when he stated in part as follows:-"Courts have dealt with the need to avail such information to an accused person to enable him/her make a choice on legal representation. In Pett vs Greyhound Racing Association (1968) 2 All ER 545 Lord Denning presented himself thus: -"It is not every man who has the ability to represent himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A magistrate says to a man; ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has trained for the task."In South Africa in Fraser vs ABSA Bank Limited (66/05) (2006) ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) the constitutional court had the following to say: -"Without the recognition of the right to legal representation in section 26(6), the scheme of restraint embodied in POCA might well have been unconstitutional. However, the right embodied in section 35(3)(f) of the Constitution does not mean that an accused is entitled to the legal services of any counsel he or she chooses, regardless of his or her financial situation…."In Kenya, the Supreme Court in Petition No 5 of 2015 Republic -vs- Karisa Chengo & 2 others [2017] eKLR while dealing with various aspects of the right to a fair hearing under article 50 of the Constitution stated as follows: -"the right to legal representation…...under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more."Apart from the Constitution and the foregone judicial decisions there is The International Convention on Civil and Political Rights (ICCPR) which Kenya is a party after adopting it on December 16, 1966. Article 14(3)(d) thereof entitles an accused person of the following rights: -"To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;"

26. J Mrima held that the duty rests on the court to inform an accused of the right to legal representative. In the case ofJoseph Kiema Philips =vs= Republic(2019) e KLR, J Nyakundi added his voice when he held ;-"……it is paramount that the record of the trial court should demonstrate that the accused was informed of his right to legal representation and whether or not in the case that the he cannot afford an advocate, one may be appointed at the expense of the state. It [the court record] must show that the court did take the profile of the accused person before the trial commenced……"

27. In this case, though the appellant indicated that he was pleading guilty to the charge, the court never bothered to explain to him his rights to counsel and went ahead to convict and sentence him. That was irregular and a serious derogation of the appellants right to fair trial.

28. As regards violation of article 50 (2) (h) of the Constitution, it places a duty on the State to assign an advocate to an accused at the State expenses. That right cannot accrue unless substantial injustice will result if counsel not provided.

29. The right under sub article 2 (h) therefore does not seem to be absolute like that under (2) (g) (sub article).

30. In the end however, the court failed to explain to the appellant the consequence of pleading guilty to such a serious offence and also failed to inform the appellant of his right to counsel. The failure renders the proceedings before this court a nulity. I hereby quash the conviction and set aside the sentence.

31. Should the court order a retrial? The appellant also suggestd that the court do order a retrial. The decision of Ahmed Sumar vs Republic (1964) EA, the Court of Appeal set down some of the creteria that the court should consider before ordering a retrial. The court said:-“It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered………In this judgment the court accepted that a retrial should not be ordered unless the court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person."

32. From the facts read out to the appellant, it seems that the potentionally admisable evidence is likely to result in a conviction. The appellant was sentenced on March 15, 2021, about one year seven months ago. He has not served a substantial part of the sentence. He will not suffer any prejudice if retrial is ordered. If retrial is ordered. The court has to consider whether indeed the complainant was violated and justice needs to be done both for appellant and complainant so that if the appellant is found to have committed the offence, then he should face the full force of the law. I find that this is a proper case to order a retrial which I hereby do.

32. The appellant be and is hereby released to Migori Police Station forthwith, to be produced for fresh plea before the Chief Magistrate Migori on November 21, 2022. The case be placed before any other magistrate except Hon Areri Principal Magistrate. Since this is a retrial, the case be expedited.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 17TH DAY OF NOVEMBER, 2022. R. WENDOHJUDGEJudgment delivered in the presence ofMr. Mulama, for the State.Appellant present in person.Evelyne Nyauke – Court Assistant