[2022] KEHC 10178 (KLR)

Saney v Republic (Criminal Appeal E019 of 2021) [2022] KEHC 10178 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10178 (KLR)

Republic of Kenya

In the High Court at Garissa

Criminal Appeal E019 of 2021

A Ali-Aroni, J

July 7, 2022

Between

Mohammed Sori Saney

Appellant

and

Republic

Respondent

Judgment

1. Mohammed Sori Saney, the Appellant herein was charged with the offence of Escape from Lawful custody contrary to Section 123 as read with Section 36 of the Penal. He was convicted on his own plea of guilty and sentenced to two (2) years imprisonment.The particulars of the offence are that on the March 11, 2021 at Wajir G.K. Prisons, Wajir East Sub County within Wajir County being in Lawful custody, the Appellant escaped from the said custody.

2. The Appellant was aggrieved by the conviction and sentence and appealed to this court on five grounds as follows; -a.That the charge against him was defective from the start.b.That the learned trial magistrate erred in law and fact when he did not consider the circumstance surrounding the commission of the offence.c.That the learned magistrate failed to appreciate that the evidence adduced in court was manifestly insufficient, inconsistent and glaring gaps incapable of sustaining a conviction and failing to give due consideration.d.That the learned trial magistrate failed to comply with judiciary rules thereby shifting the burden directly to the appellant without comparing the investigation brought by the prosecution side.e.That the trial magistrate erred in law and fact when he grossly imposed a harsh and excessive sentence on the appellant since the prosecution side did not compile evidence and supporting statement.

3. The Appeal was conducted by way of submissions. The appellant opted to submit orally where he sought for forgiveness and further informed the court that has children back home who are in school. He also submitted that he did not know that it was a mistake to escape.

4. On its part the state filed written submissions where it urged that the appellant has not demonstrated any ground to warrant the court to interfere with the unequivocal plea nor the sentence meted out. Further it was submitted that the sentence invoked by the trial magistrate is legal and appropriate bearing the circumstance of the case and the same should be upheld. The state relied on the provisions of Section 384 of the Criminal Procedure Code and the cases of Ndede vs Republic[1991] KLR 567 & Nelson vs Republic [1970] E.A. 599.

Analysis and Determination 5. This being a first appeal it is thus this court's duty to re-evaluate the evidence and make its own conclusion. In the often cited case of Okeno v Republic [1972] EA 32 at 36 the East Africa Court of Appeal stated on the duty of the Court on a first appeal:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. ”

6. The proceedings in the trial court read as follows;19/3/2021Before Amos Mokoross- P.M.Prosecutor: NgetichCourt Clerk: NuhAccused presentAccused: I understand KisomaliCourt: Charges read to the accused person in Kisomali and he pleads as follows;Accused: It is true.Prosecutor: The facts are that on 4/3/2021 at around 1600hrs offices at GK Prison were in the process of changing duties while the prisoners ate when the accused who had been convicted for stock theft decided to climb the perimeter wall facing the office of the OCPD. Luckily one of the officer spotted him as he jumped down the wall. He was chased and caught less than 100m from the prisons. He was re-arrested and charged with the present offence.Accused: The facts are true.Court: Accused convicted on his own plea of guilt.Prosecutor: The accused is serving a 3 years’ jail term in Criminal Case No. 226 of 2020. MitigationAccused: I have 11 children and some were chased from school. My stock is also dying of thirst due to drought. I feared for my children and their welfare some of my children have been chased from School and Duski. It is that stress that made me run off. I was jailed for 3 years and I have been in jail ever since.

7. The first ground of appeal relates to defect of the charge. The appellant did not elaborate on this ground nor demonstrate how the charge or the charge sheet is defective. The charge sheet cited the correct provisions of the law, the particulars of the offence and the circumstances. The court does not find any defect in the charge sheet as read out to the appellant.

8. The 2nd, 3rd and 4th grounds of appeal relate to the plea and whether the circumstances relating to the same were sufficient to sustain a conviction. The appellant pleaded guilty to the offence. Section 348 of Criminal Procedure Code. The same 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.”

9. In John Muendo Musau v Republic [2013] eKLR the Court of Appeal held as follows;“There is a long line of authority to the effect that the bar to an appeal against a conviction based on a guilty plea is not absolute. The case law was reviewed by the predecessor of this Court in Adan (supra). In Ndede vs Republic [1991] KLR 567 this Court held that the court is not bound to accept the accused person’s admission of the truth of the charge and conviction as there may be an unusual circumstance such as injury to the accused, or the accused is confused or there has been inordinate delay in bringing the accused person to court from the date of arrest. In the appeal before us, we reiterate our satisfaction that the plea of guilty was unequivocal.”

10. The legal principles to be applied in plea taking in criminal cases were well enunciated in the locus classicus case of Adan vs Republic [1973] EA 445 where the Court held:-“(i)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 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 does not agree with the facts or raises any question 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 facts relevant to sentence together with the accused’s reply should be recorded.”

11. In John Muendo Musau v Republic (supra) the Court of appeal broadened the principles set out above where it held;“…We want to add here that if the accused wishes to change his plea or in mitigation says anything that negates any of the ingredients of the offence he has already admitted and been convicted for, the court must enter a plea of not guilty. That is to say that, an accused person can change his plea at any time before sentence. The procedure as laid out in Adan vs Republic (supra) is also provided for under section 207 of the Criminal Procedure Code….”

12. In this instance the charge and the particulars of the offence were read out to the Appellant in a language he understands and he pleaded guilty. The facts were then read out to him, again in a language he understands and he admitted to the same. The procedure undertaken by the trial court was not faulty. Further during mitigation the appellant conceded that he committed the offence and informed the court that he did so as he feared for the welfare of his children. His mitigation did not therefore negate the offence. The conviction is therefore found to have been safe.

13. Ground 5 of the appeal relates to sentence. Section 123 of the Penal Code provides as follows;“Any person who being in lawful custody escapes from that custody is guilty of a misdemeanor”

14. A misdemeanor is defined in section 4 of the Penal Code as any offence which is not a felony. The general punishment for misdemeanor is provided for in Section 36 of the Penal Code as follows;-“Where in this code no punishment is specifically provided for any misdemeanor, it shall be punishable with imprisonment for a term not exceeding two years or with a fine or to both”

15. Based on the above the court finds the sentence of two (2) years imprisonment imposed is lawful, however the order that the same is to run consecutive to the earlier sentence of 3 years is punitive and to that extent the sentence is set aside. The court orders the two sentences to run concurrently. The Appeal succeeds to that extent.

DATED SIGNED AND DELIVERED AT GARISSA THIS 7THDAY OF JULY 2022ALI-ARONIJUDGE