[2016] KEHC 6625 (KLR)
The court found that the appellant's statement during mitigation, specifically his claim of mental illness, rendered his plea of guilty equivocal. This raised the possibility of a defence of insanity, which the trial court failed to investigate. As a result, the conviction and sentence could not stand. The court...
Source-derived case information.
- Citation
- [2016] KEHC 6625 (KLR)
- Parties
- Appellant: Vincent Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 5 of 2015
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- conviction quashed, sentence set aside, retrial ordered
- Legal Topics
- Defilement, Plea Equivocality, Insanity Defence, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Onyango
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the appellant's plea of guilty was unequivocal in light of his statement regarding mental health.
- 2 Whether the conviction and sentence should be quashed and a retrial ordered.
- 3 Whether the interests of justice require a retrial given the circumstances of the case.
Ratio Decidendi
The court found that the appellant's statement during mitigation, specifically his claim of mental illness, rendered his plea of guilty equivocal. This raised the possibility of a defence of insanity, which the trial court failed to investigate. As a result, the conviction and sentence could not stand. The court further determined that a retrial was appropriate, considering the interests of justice, the seriousness of the offence, the appellant's prior admission, and the relatively short period of incarceration already served compared to the statutory minimum sentence. The court also considered the victim's right to have the complaint adjudicated on its merits. The retrial was ordered...
Court Disposition
conviction quashed, sentence set aside, retrial ordered
Orders
- The conviction of Vincent Onyango is quashed.
- The sentence imposed is set aside.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL APPEAL NO. 5 OF 2015
VINCENT ONYANGO -------------APPELLANT
VERSUS
REPUBLIC ------------------------RESPONDENT
(Appeal arising from conviction and sentence from Chief Magistrate’s Court Sexual Offence Case No. 19 of 2015 imposed by D.O. Ogola Chief Magistrate on 21st January 2015)
JUDGMENT
On 21st January 2015, Vincent Onyango (The Appellant) pleaded guilty to the offence of Defilement of a Girl contrary to Section 8(1)(2) of the Sexual Offences Act 2006. Upon his conviction he was sentenced to serve a prison term of 15 years.
The record shows that before sentence was passed, the Appellant said the following in mitigation;
“I am asking for leniency. I am a first offender. I am sick and I lose my mind occasionally. I did a bad thing and I am totally sorry. I am a sole breadwinner of my 3 children who would suffer. I have a sick wife. My family would suffer and become destitute if I am jailed. Since I was arrested, I have not taken medicine”
This Court agrees with the State Counsel that the words “I am sick and I lose my mind occasionally” invited the Court to consider whether in fact the Appellant was raising a Defence. The Defence he may have been raising was that of Insanity (Section 12 of the Penal Code).
It is for this reason that the plea would not be entirely unequivocal. I quash the conviction and set aside the Sentence imposed on him. In his written submissions to Court The Appellant asked this Court to either set him free absolutely or to place him on retrial. A retrial, in my view, would be the more appropriate order to make.
The Predecessors to the Court of Appeal in Fatehali Maji vs the Republic [1966] EA 344 said this of when a Retrial should be ordered;
“We will not quote the other passages in full but we will content ourselves with stating the principles which emerge from them. They are the following: In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up 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 would be ordered; each case must depend on its particular facts and circumstances and an order for retail should only be made where the interest of justice require it and should not be ordered where it is likely to cause an injustice to the Accused person”
Although the Appellant was charged with Defiling a girl of 13 years, the P3 Form produced in Court showed that the Girl was about 15 years old at the time of alleged the offence. A person who defiles a Girl of 15 years commits an offence under Section 8(1)(3) of the Sexual Offences Act The punishment for that offence is a minimum sentence of 20 years imprisonment. If the Appellant were to be properly convicted then he would be liable to serve a prison term of 20 years. It is of course true that the Appellant has suffered inceration on account of a conviction which has now been quashed. Whilst service of one (1) year in prison cannot be diminished it is nevertheless not substantial compared to the possible term of 20 years. In any event that period served can be discounted in the event of a conviction. There is also the right of the victim who would have an interest that the complaint made be processed on merit. In particular because there was an admission by the Appellant that there was defilement. These would be good reasons for this Court to order a retrial.
I reach this Decision notwithstanding that the current illness of the Appellant may have swayed me to go the other way. True, at the hearing of the Appeal, the Appellant looked sickly but whether he shall be in a position to stand retrial will be a decision for the Retrial Court to make.
For this reason I order that the Appellant be retried before a Magistrate of competent jurisdiction other than D.O. Ogola CM who convicted him.
Fresh plea shall be taken immediately before the Chief Magistrate’s Court at Busia. The Appellant to attend Court accordingly.
Dated, signed and delivered at Busia this 24th day of February 2016.
F. TUIYOTT
J U D G E
In the presence of :-
Orwasa - C/Assistant
Appellant present in person
Owiti - for Respondent