[2022] KEHC 13431 (KLR)

Tanui alias Cheruiyot v Republic (Criminal Appeal 34 of 2020) [2022] KEHC 13431 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13431 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal 34 of 2020

RN Nyakundi, J

October 5, 2022

Between

Wesley Tanui alias Cheruiyot

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence in Eldoret CMCC No. 3729 of 2019 delivered by Hon. B. Kiptoo (SRM) on 11/12/2019)

Judgment

1. The Appellant, Wesley Tanui alias Cheruyot was charged with two counts of threatening to kill contrary to section 223(1) of the Penal Code.

2. In the first count, the particulars of the offence were that on the 8th day of December, 2019 at Kitinga sub-location in Kesses Sub-County, within Uasin Gishu County, without lawful cause uttered words to wit “I will kill you my parents” a threat to kill Simon Kerich Kipyom.

3. In the second count, the particulars were that on the same date, time and location, without lawful cause uttered words to wit “I will kill you my parents” a threat to kill Selly Jelagat Kerich.

4. The Appellant pleaded guilty to both charges and was convicted on his own plea of guilty and sentence to 24 months in prison.

5. The Appellant despite being convicted on his own plea of guilty, was nonetheless aggrieved by both the conviction and sentence meted out against him by the trial Court. His appeal is based on grounds that: -1. The trial magistrate erred both in law and fact by failing to follow the laid down procedure of taking plea of guilty hence failing to secure unequivocal pleas of guilty from the Appellant.2. The trial magistrate erred both in law and fact by failing to enter a plea of not guilty after the Appellant raised a defence in mitigation.3. The trial magistrate erred both in law and fact by failing to appreciate the fact the facts as presented in Court could not support the charges against the accused person.4. The trial magistrate erred both in law and fact by failing to inquire from the Appellant on the language he understood well during plea taking occasioning a miscarriage of justice.5. The trial magistrate erred both in law and fact for convicting and sentencing the Appellant to serve 24 months in prison before being satisfied that the Appellant understood all the elements and the substance of the charges in a language he understood.6. The trial magistrate erred both in law and fact for failing to appreciate that the Appellant had been plagued with mental illness since his birth and therefore unfit to plead and in any event was incapable of appreciating the nature of his actions.7. The trial magistrate erred both in law and fact by failing to explain to the Appellant the severity of the sentence.

6. In his written submission dated 7th February, 2022, Counsel for the Appellant, Mr. Kirui submitted that the procedure used by the trial Court to record the guilty plea was not proper as it failed to meet the threshold stipulated under Section 207 of the Criminal Procedure Code. Counsel relied on the case of AdanvRepublic (1973) EA. Counsel, submitted that whether a guilty plea is unequivocal or not depends on the circumstances of each case. Counsel’s main contention is that although the trial Court’s record indicates the charge and every element thereof was stated by Court to the accused in language that he understands, it does not explicitly state which exact language was used to explain. Counsel further contends that, while the Adan case stipulates the salutary practice that the Court records the words of the accused person verbatim, this was not done in the instant case. Counsel faulted the learned trial Magistrate in fact recorded the response in English.

7. Counsel for the Appellant, further submitted that Courts have always held that extra caution needs to be taken in the cases where undefended accused persons plead guilty. Counsel further argued that where an accused person is unrepresented, the duty of the Court is to ensure that the plea of guilty is unequivocal is heightened. Counsel relied on the decision in Paulo Malimi MbusivR Kiambu Criminal Application No. 8 of 2016 (unreported)

8. Counsel for the Appellant also contends that the particulars of the offence were not sufficient enough for the Appellant to understand the charge being asked to plead to. Counsel argued that from the facts it was not stated who the accused parents were and at what time on that particular day did the alleged offence take place. Further, Counsel argued that the ingredients and sufficient information of the offence did not come out clearly as the exact words used to threaten the complainants were not stated when the facts were read to the Appellant.

9. Counsel maintains that the plea of guilty was erroneously entered by the trial Magistrate as the Appellant had raised in his defence during mitigation that he was drunk and could not have been responsible for the alleged acts. Counsel relied on the decision in Machakos Criminal Appeal No. 124 of 2015 NK V Republic.

10. Counsel urged Court that the conviction and sentence meted against the Appellant be quashed and that the Appellant be set free forthwith.

Determination 11. This being a first appellate Court, the power bestowed upon it (as was stated in Okeno –vs- Republic [1972] EA 32) is to re-examine the evidence (facts and evidence) presented before the trial Court and evaluate the same in order to determine whether the trial Court erred in law and fact in the extent as raised in the petition of appeal. Even where no evidence was adduced by the prosecution witnesses (for instance where a plea of guilty is recorded) the appellate Court is still obligated to scrutinize the proceedings in their entirety so as to ascertain whether or not the sentence was lawful and legal.

12. There is no dispute here that the Appellant pleaded guilty to both the charge and the detailed particulars read over to him as per the proceedings of the trial Court. However, from the submissions, it is clear that the Appellant challenges the plea taking procedure and that during mitigation he had informed Court that he was drunk at the time of incident and therefore the trial Court should have not entered the plea of guilty.

13. The procedure of taking a plea is clearly set out in Section 207 of the Criminal Procedure Code and which provision was expressed in the celebrated case of Adan –vs- Republic(1973) EA 445. As a procedure, 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. The accused’s own words should then be recorded and if they are an admission, a plea of guilty should be recorded.

14. 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. 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. 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.

15. In the present case, it is evident that trial Court’s record does not indicate the language that the Appellant understands before taking his plea. This is in both the typed proceedings and the handwritten proceedings. It is therefore in doubt as to whether the appellant understood the charges which were read to him and the ingredients thereof.

16. From evidence on record it is also clear that the Appellant qualified his guilty plea on mitigation when he stated as follows: “I was drunk. I will not repeat.” I am not satisfied that the said plea passed the “unequivocal test”. The mitigation amounted to a statement of defence as it raised the issue of drunkenness which ought to have been canvassed at a hearing. I find that the mitigation amounted to a change of plea to that of “not guilty” and the trial magistrate misdirected himself when he went ahead to convict the appellant despite the clear and apparent change of plea. For a guilty plea to be unequivocal, the steps set out in Adan vs Republic (supra) must be followed. Further, the record must be such that it leaves no doubt as to whether the accused understood the charges and confirmed the charges as true. I find that the plea in this case was not unequivocal and hereby quash the conviction and sentence.

17. As argued by Appellant, the trial Court did not warn the Appellant as to the consequences of pleading guilty. The importance of warning the accused person as to the consequences of pleading guilty was considered in the case of Elijah Njihia Wakianda –vs- Republic [2016] eKLR where the Court of Appeal held that; -“........We also think that the elements of the offence are not complete if the sentence, especially if it is a severe and mandatory sentence, is not brought to the attention of the accused person. One surely ought to know the consequences of his virtual waiver of his trial rights that the Constitution guarantees him. That did not occur here and yet the appellant was unrepresented calling upon the trial court to be particularly solicitous of his welfare. The officer presiding is not to be a mere umpire aloofly observing the proceedings. He is the protector, guarantor and educator of the process ensuring that an unrepresented accused person is not lost at sea in the maze of the often- intimidating judicial process......”

18. This duty exists not only to capital offences but other serious offences whose sentences may be indefinite or long. The Court must ensure that not only does the accused understand the ingredients of the offence with which he is charged at all the stages of the plea taking, but that he also understand the sentence he faces where he opts to plead guilty as failure to do so is a violation of his right to a fair trial and that the plea of guilty was in those circumstances not unequivocal.

19. Having quashed the conviction, should I order a retrial? I think not. I consider, in the circumstances of this appeal, that a retrial is likely to cause an injustice to the Appellant. As stated by the Court Appeal in Fatehali Manji vs Republic 1964 E.A 481“even where a conviction is vitiated by a mistake of the trial Court of which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered, each case must depend on its particular facts and circumstances and a order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to the accused person.”

20. Similarly, In Muiruri –vs- R[2003] KLR 552, the Court held that: -“It [retrial] will only be made where the interests of justice require it and if it is unlikely to cause injustice to the appellant. Some factors to consider would include, but are not limited to, illegalities or defects in the original trial. (See Zedekiah Ojuondo Manyalavs Republic (Criminal Appeal No. 57 of 1980); the length of time which has elapsed since the arrest and arraignment of the appellant; whether the mistakes leading to the quashing of the conviction were entirely of the prosecution’s making or the Court’s.”

21. I will therefore allow the appeal, quash the conviction, set aside the sentence and order that the Appellant be set at liberty forthwith unless he is otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 5TH DAY OF OCTOBER, 2022. ............................R. NYAKUNDIJUDGEIn the presence of:Mr Mugun for DPPThe appellant