[2022] KEHC 13810 (KLR)

Waithera v Republic (Criminal Appeal E026 of 2021) [2022] KEHC 13810 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13810 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Appeal E026 of 2021

MM Kasango, J

October 6, 2022

Between

Stephen Waithera

Appellant

and

Republic

Respondent

(An appeal from original conviction and sentence in the Principal Magistrate’s Court at Githunguri, (Hon C Kutwa, PM) dated June 24, 2016 in Sexual Offences Criminal Case No 10 of 2016)

Judgment

1. Stephen Kariuki Waithera has filed this appeal against the conviction and sentence of Githunguri Principal Magistrate’s Court in Criminal Case no so Case no 10 of 2016.

2. The appellant was arraigned before the Githunguri Magistrate’s Court on June 20, 2016 facing the charge on the main offence and alternative offence. The main offence was the charge of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act while the alternative charge was of indecent act with a child contrary to section 11(1) of the Sexual Offences Act.

3. The appellant on the main charge being read to him responded by say, ‘not true.’ The alternative charge was read to the appellant and he responded by say, ‘true’. The trial court recorded plea of guilt and sentence appellant to 15 years imprisonment.

4. The learned counsel for the appellant Mr Swaka in submissions in support of the appeal stated that appellant’s plea was equivocal since the appellant was not warned of the dangers of pleading guilty. Counsel also submitted that the sentence of 15 years imprisonment was excessive.

5. Mr Kasyoka Prosecution Counsel of DPP submitted that appellant’s plea was unequivocal and the sentence of the trial court was legal.

Analysis and determination 6. How is a court expected to conduct a plea? The answer was given in the cases quoted by Justice C W Githua in the case Willy Kipchirchir vs Republic [2015] eKLR as follows:-“In the celebrated case of Adan v Republic (1973) EA 445 which was quoted with approval by our Court of Appeal in Kariuki v Republic (1984) KLR 809, the East Africa Court of Appeal laid down the steps a plea court should take to record an unequivocal plea as follows;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;ivIf the accused does not agree 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 the facts relevant to sentence together with the accused’s reply should be recorded."

7. Following the appellant’s plea of guilt to the alternative charge, the prosecution presented the following facts:-“On diverse date between April to June, the complainant disagreed with her parents. The accused met her and took her to his house. The accused defiled her severally until June 16, 2016 when the accused was arrested for various offences. The complainant was also arrested and taken to hospital. Upon examination, it was confirmed that the minor had been defiled.

8. The above is the totality of facts that resulted in the appellant being convicted on his own plea of guilt for the offence under section 11(1) of the Sexual Offences Act. The above facts clearly fail to prove that the complainant was indeed defiled since no medical evidence was produced by prosecution. Further, and more importantly, the facts failed to prove the age of the complainant because no birth certificate was produced to prove age. Section 11(1) of the Sexual Offences Act is in the following terms:-“(1)A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement. Acts which cause penetration or indecent acts committed within the view of a family member, child or person with mental disabilities. Defilement. Cap.”

9. The above section will show that the prosecution should have proved that the complainant was a child. That is that she was under 18 years of age. This is more important because the appellant, after the facts were read out by the prosecution stated thus:-“I pray for forgiveness. The complainant was my girl friend.”

10. That response of the appellant should have alerted the trial court to require proof of the age of the complainant. The Supreme Court of Canada in the case R vs Wong, 2018 SCC 25 (Can LII)(2018) ISCR 696 emphasised the need of an accused in pleading guilty, for such a plea to be voluntary, unequivocal and informed. This is what that court stated:-“A guilty plea may be accepted by a court only if it is voluntary, unequivocal and informed. For it to be informed, the accused must understand the nature of the allegations, the effect of the plea and the consequences of the plea. In addition to effects on the criminal process itself, significant non-criminal consequences can flow from a guilty plea. These are known as collateral consequences."

11. Because of that failure, I therefore make a finding that the appellant’s plea was equivocal and the guilty plea entered by the trial court was therefore unsafe and invalid. To allow that plea to stand would result in miscarriage of justice. The magistrate erred to convict an equivocal plea of guilt.Dispositiona.The guilty plea entered on June 20, 2016 in Githunguri Criminal Case no 10 of 2016 is hereby set aside. Instead, a plea of not guilty is hereby recorded in that case.b.The sentence of the appellant in that case is hereby set aside.c.The appellant shall be released from prison and shall henceforth be remanded pending his presentation before the Githunguri magistrate’s court for retrial.d.The appellant shall be presented before the Githunguri magistrates court on October Thursday 27, 2022 for directions.e.The retrial shall be conducted by another magistrate other than C Kutwa, PM.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 6TH DAY OF OCTOBER, 2022. MARY KASANGOJUDGECoram:Court assistant: MouriceAppellant: - Ms Kamau HB Mr SakwaFor respondent: - Mr. Kasyoka presentCOURTJudgment delivered virtually.MARY KASANGOJUDGE