[2009] KEHC 1973 (KLR)
The court found that the plea of guilty entered by the appellants was not unequivocal because the language used during plea taking was not properly recorded, contrary to established legal requirements. Although the facts of the charge were clear and sufficiently stated, the failure to record the language rendered...
Source-derived case information.
- Citation
- [2009] KEHC 1973 (KLR)
- Parties
- Appellant: Robert Njoroge; Appellant: Gerald Githinji; Appellant: Mercy Njoki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 232, 233 & 234 of 2008
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- appeal allowed; conviction quashed; sentence set aside; retrial ordered
- Judges
- I Lenaola
- Legal Topics
- Plea Taking, Forest Offences, Language of Court, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Njoroge
Appellant
Gerald Githinji
Appellant
Mercy Njoki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the plea of guilty entered by the appellants was unequivocal in light of the failure to record the language used during plea taking.
- 2 Whether the appellants pleaded to the facts as required by law.
- 3 Whether a retrial should be ordered after quashing the conviction and sentence.
Ratio Decidendi
The court found that the plea of guilty entered by the appellants was not unequivocal because the language used during plea taking was not properly recorded, contrary to established legal requirements. Although the facts of the charge were clear and sufficiently stated, the failure to record the language rendered the plea defective. The court further held that a retrial was appropriate in this case because the original trial was defective, and the prosecution would not have an unfair opportunity to fill evidentiary gaps, as no trial had taken place. Consequently, the convictions were quashed, sentences set aside, and a retrial ordered before a different magistrate.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; retrial ordered
Orders
- The appeal is allowed.
- The appellants' convictions are quashed and sentences set aside.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Criminal Appeal 232, 233 & 234 of 2008
ROBERT NJOROGE ..................................1ST APPELLANT
GERALD GITHINJI .......................................2ND APPELLANT
MERCY NJOKI .............................................3RD APPELLANT
VERSUS
REPUBLIC ......................................................RESPONDENT
(Appeal from a Judgment of the Principal Magistrates Court at Kangundo
(Hon. S.A. Okato Ag. PM) dated 30th October 2008)
in
(PM’S CR.C. No. 695 of 2008)
*************************
JUDGMENT
(As Consolidated on 18/5/2009)
1. The Appellants in this case, Robert Njoroge, Gerald Githinji and Mercy Njoki were all charged with the offence of being of possession of charcoal without a permit contrary to Rule 54 (1) (3) of the Forest Act, 2005. They appeared before the Ag. Principal Magistrate in Kangundo on 30/10/2008 and they pleaded guilty to the charge and were each sentenced to a fine of Kshs.50,000/= or in default 1 year in prison.
2. In their Appeals to this court, they have challenged their conviction and resultant sentence and in conceding to the Appeal, the learned Senior Principal State Counsel stated that the plea was not unequivocal because the language used in taking the plea was not recorded and the Appellants did not also plead to the facts that led to the charge.
3. I have had the advantage of reading the record of proceedings on 30/10/2008. On that day, one Fidelia was the court clerk and the languages used in interpretation were English, Kiswahili and Kikamba. The Appellants’ preferred language is however unclear. Their names would point to a certain language not in the proceedings but that is neither here nor there; their language in taking the plea ought to have been properly recorded – See Adan vs R (1973) E.A. 445. I am aware that Abdullah J inMutuku vs R (1982) KLR 312 held that where a record of interpretation is made, a presumption arises that the accused person understood one of the languages. That may well be a reasonable presumption in other circumstances but in this case, three languages are listed but in the plea, none is recorded as the one used in taking the actual plea. I therefore agree that the plea was not unequivocal.
4. On the issue whether the Appellants pleaded to the facts, I do not see any error where the prosecutor states that the facts are in the charge sheet. In this case the Appellants were allegedly jointly found in possession of 200 bags of charcoal valued at Kshs.160,000/= without the authority of the District Forests Officer on 29/10/2008 at around 19. 30 hrs along Kangundo-Tala Road. Those facts were clear enough and so the second ground to me, cannot be sustained.
5. Lastly, a ‘retrial’ is opposed but in Manji vs R (1966) E.A. – 343 it was held thus
“In general a retrial will be ordered only where the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence for the purpose of enabling the prosecution to fill up the gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered, each case must depend on its own facts and circumstances and an order for retrial should only be made where the interests of justice require it.”
6. I adopt the above words as mine and in the instant case, the charcoal, subject of the charge was kept in safe custody and with no trial having taken place, the prosecution will not have the chance to close any gaps in the evidence to be tendered.
7. In the end, the Appeal is allowed, the Appellants’ conviction quashed and sentence set aside but, they shall, be retried at Kangundo SRM’s Court by a magistrate other than S.A. Okato Esq, Ag. PM. In the meantime the Appellants will appear before that court on a date to be determined and shall be in custody before then.
8. Orders accordingly.
Dated and delivered at Machakos this 22nd day of September 2009.
ISAAC LENAOLA
JUDGE
In presence of: Mr O’Mirera for Republic
Mr Kaluu h/b for Mr Musyoka for Appellants
ISAAC LENAOLA
JUDGE