[2015] KECA 421 (KLR)

IN THE COURT OF APPEAL

AT MALINDI

(CORAM: MAKHANDIA, OUKO & M’INOTI, JJ.A.)

CRIMINAL APPEAL NO. 56 OF 2013

BETWEEN

WANDETE DAVID MUNYOKI …………….………………………………..…… APPELLANT

AND

REPUBLIC …………………………………..………………………………….…. RESPONDENT

(Appeal from a judgment of the High Court of Kenya at Mombasa

( Odero, & Muya, JJ.) dated 13th August 2013

in

H.C.Cr.A. No. 52 of 2008)

**************

JUDGMENT OF THE COURT

It has long been settled that Section 348 of the Criminal Procedure Code which provides that no appeal is allowed in a conviction arising from a plea of guilty, except to the extent and legality of the sentence, is not an absolute bar to challenging such a conviction on any other ground. Indeed in Ndede v R [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 person or the accused person may be confused or there have been inordinate delay in bringing him to court from the date of arrest. The list of circumstances and examples that may lead the first appellate court to consider the appeal on merit even when the conviction was on the accused person’s own plea of guilty, are not closed.

The second principle we must remind ourselves of in addition to the procedure laid down in Adan v R [1973] EA 445, is that before basing a conviction on a plea of guilty in a capital offence the trial court must warn the accused person of the consequences of entering such a plea. See Boit vR [2002] 1KLR 815.

In the appeal before us the appellant who was charged as accused 1 along with two others with the offence of robbery with violence contrary to Section 296(2) of the Penal Code, pleaded guilty to the charge and was sentenced to death. His first appeal to the High Court challenging the conviction and sentence was dismissed. He now brings this second appeal on four grounds which were argued together by his advocate, Mr. Mayaka. He submitted that the plea was equivocal and that in view of the nature of the offence, carrying death sentence, the trial magistrate ought to have availed counsel to the appellant. He urged us to order for a retrial.

Mr. Monda for the respondent for his part opposed the appeal and sought its dismissal for want of merit; that the plea was unequivocal; that the appellant understood the nature of proceedings and voluntarily pleaded guilty because he alone, out of the three accused persons jointly charged with him, pleaded guilty, even after being warned of the consequences by the trial magistrate; that in 2008 when the trial took place the right to counsel provided for under the Constitution of Kenya, 2010 had not accrued.

The charge and its particulars thereof were to the effect that on 22nd January 2008 at around 11. 00 a.m. in Kinondo Location, Kwale, the appellant and his two accomplices, while armed with pangas, robbed Wilson Masaku Mukosi of a bicycle and radio, and at the time of such robbery they used actual violence ono the said Wilson Masaku Mukosi and caused his death.

The appellant having pleaded guilty to the charge and the foregoing particulars, the record of the trial court reads:

“Court: Court has implored on the accused 1 five times on the nature of the offence and on the sentence it carries, accused 1 maintains – it is true.”

The following facts were then outlined by the prosecutor:-

“Prosecutor: On 22-1-2008 at about 11. 00 p.m. one Wilson Masaku was asleep in his house when a gang of 3 people broke the door of his house and entered. They woke him up and started cutting him with pangas. He died instantly. They put the body of deceased in a sack and dumped it four meters from his house. They then went away. Matter was reported to Msambweni. Body was taken to Msambweni D.H. Mortuary. A post mortem was carried out showing cause of death was head injuries due to mitigated(sic)cuts from a sharp object.

After investigations, accused was arrested. Accused agreed that he had committed the offence, during interrogation. He was then charged. I produce the postmortem form.

Accused 1: Facts are correct.

Prosecutor: Accused 1 is a first offender,

Accused 1: I was alone. I ask for leniency.

Court: Mitigation of the accused 1 is noted. This is a serious offence whose sentence is prescribed only to be death. Accused has admitted both the offence and the facts. I accordingly sentence him to death as prescribed by the law. Right of 14 days(sic).

Ogembo D.O. SRM

25/2/2008”

We shall shortly revert to these facts suffice to point out that while the appellant’s co-accused persons maintained pleas of not guilty, the appellant reiterated that the facts were correct. What has however caused us considerable concern is what the appellant said in mitigation.

“Accused 1: I was alone. I ask for leniency”

To prove the offence of robbery with violence under Section 296(2) of the Penal Code it must, first and foremost be demonstrated that there was robbery within the meaning of Section 295 of the Penal Code, that something was stolen in the course of which violence was either used or threatened on the victim or the property. “… in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”

After demonstrating the first requirement that something was stolen in those circumstances, one of the following three other ingredients must be proved to exist;

that the offender was armed with a dangerous or offensive weapon, or

that he was in the company of one or more other person (s); or finally,

that at or immediately before or immediately after the time of the robbery the offender wounded, beat, struck or used any other violence to any person. See Johana Ndungu v R, Cr. Appeal No. 116 of 1995

According to the charge sheet the appellant is alleged to have been in the company of two others; that they were armed with pangas; that they robbed Wilson Masaku Mukosi; that at, or immediately before or immediately after the robbery they used actual violence to the said Wilson Masaku Mukosi thereby causing his death. When the facts were outlined as reproduced earlier, there was no mention of any stolen item. The bicycle and radio contained in the charge sheet as having been stolen were not mentioned in the narration of the facts. Secondly in mitigation, while the charge sheet read that the appellant was in the company of two others, he explained that he was alone.

How did the High Court (Ibrahim and Ojwang, JJ. as they then were) deal with the manner the plea was taken? They observed:-

“In his written submissions, the appellant carries general argument with the respondent’s position; for instance, challenging the prosecutions statement in Court that he was a first offender; typifying the trial Court’s decision as wrong, because that Court did not order him to be taken for psychiatric examination before sentence was handed down; questioning the Court of first instance of having sentenced him without being convinced he understood the nature of the plea of guilty; the particulars of the offence as stated in the charge, claimed to be not disclosing the offence of robbery with violence …. In this case, assessed on the merits, the appellant well and truly understood the nature of the charge read out to him, and he did plead guilty repeatedly.

We found nothing improper, in the manner in which the charge was framed; and hence, in our opinion, the broad argument in the appellant’s contest of the decision of the Court of first instance cut no ice; and on the merits of the case, the appellant’s appeal is for dismissing.”

The appellant had specifically submitted before the learned Judges, inter alia, that the facts presented to the trial court did not disclose the offence of robbery with violence contrary to Section 296(2) of the Penal Code since nothing was stolen from the deceased. The burden on the prosecution to prove any charge against an accused person beyond reasonable doubt is not lessened by the fact that the accused person pleaded guilty. The facts that are outlined after the accused person admits the charge represents evidence in support of the charge. They (the facts) must, of necessity, therefore support the charge and disclose the offence charged.

At any stage before passing sentence the accused person is free to change his plea. Where the accused person does not agree with the facts as outlined by the prosecution, or where he raises any question of his guilt, his reply must be recorded and a change of plea entered. In that case the court shall proceed to hear the case by calling oral evidence. See Kariuki v R [1984] KLR 809.

By omitting the fact that the deceased was robbed of a bicycle and radio in the narration by the prosecutor and by the appellant explaining that he was not in the company of any other person, the plea of guilty recorded by the learned trial magistrate was not unequivocal and the offence of robbery with violence contrary to Section 296(2) was not proved.

There are two other curious aspects of the proceedings before the High Court. The learned Judges after dismissing the appeal made this order:-

“We dismiss the appeal and uphold the conviction. We will make final orders on sentence after a period of 30 days, pending which we hereby order that the officer-in-charge of the prison shall have the appellant brought before a psychiatrist for assessment, and the psychiatrist’s report shall be filed in Court without delay.”

Within 30 days a report stating that the appellant was “fit to plead” was presented to a bench comprising Odero and Muya, JJ. who noted that a different bench had ordered for the report. This procedure is unprecedented. Was the need for a psychiatrist report informed by the court’s own doubt as to the equivocation of the plea? Was the learned Judges’ decision to seek psychiatrist report necessitated by the fact that they found it strange for the appellant to plead guilty to a capital offence even after being warned of the consequences five times while his co-accused persons denied the charges? Suppose the report was positive that the appellant suffered mental disorder, what course of action would have been open for the court; to enter a special finding of guilty but insane sentence under Section 166(1) of the Criminal Procedure Code? Can such a plea be taken to have been unequivocal? The court may have been addressing the appellant’s complaint in the written submissions that the trial magistrate ought to have ordered him to undergo a psychiatrist examination on account of his pleading guilty to a capital charge.

The record shows, as explained earlier, that the trial court “implored” the appellant five times. It is clear that the plea was taken on 25th February 2008. It follows that the imploring was at the time of plea. Where an accused person, especially one who is not represented by counsel pleads guilty to a capital offence, it is a good practice to accord him sufficient opportunity and time to reconsider and reflect on his plea. The period for doing this must depend on the good judgment of the trial court, but we think that ordinarily it should be within a reasonable time. If the High Court found merit in the appellant’s complaint that the trial court ought to have inquired further on his mental status, that alone was sufficient to lead the learned Judges to conclude that the plea was not unequivocal. This is what the court alluded to in Ndede (supra) when it talked of the fact that the accused person may be confused at the time the plea is taken.

The second matter is with regard to the taking over of the proceedings by a different bench without any explanation as to the whereabouts of the bench that heard the appeal. Section 201(2) of the Criminal Procedure Code which extends the application of Section 200(2) to the High Court stipulates that where a bench (or a Judge) ceases to exercise jurisdiction in a matter after delivering the judgment, the succeeding bench (or Judge) may pass sentence or make any order that could have been made if the bench (or Judge) had delivered judgment. It is the duty of the succeeding bench to explain the circumstances leading to the bench that heard the appeal ceasing to exercise jurisdiction in the appeal, but the bench taking over cannot just, as it were, barge in.

We think, from what we have stated that this appeal must succeed. Learned counsel for the appellant urged us to order for a retrial. Whether or not an order for a retrial should be made will depend on the particular facts and circumstances of each case but it should only be made where the interest of justice require it and where it is not likely to cause injustice to an accused person.

The consideration before an order for retrial can be made was explained by the Court of Appeal for Eastern Africa as follows in Fatehali Manji v R (1966) EA 343 :-

“In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered when 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 should be ordered; each case must depend on its own facts and circumstances and an order for a retrial should only be made where the interest of justice require it.”

It follows that the fairest and proper thing to do where the accused person has not had a satisfactory trial is to make order for a retrial. The appellant’s co-accused persons pleaded not guilty and were tried. Although we do not know the outcome of that trial, we think this is a suitable case for remission to the trial magistrate for fresh trial in terms of Section 361 (2) of the Criminal Procedure Code. Human life was lost and we did not hear counsel for the respondent complain that witnesses cannot be availed.

On the question of the appellant’s right to counsel at the trial, it is our view, based on the reading of the law and recently decided cases, that nothing really turns on that complaint since Article 50(2) (h) of the Constitution does not apply to cases concluded before the passage of the 2010 Constitution. See Edwin Chagali Musiega v R Cr. Appeal No. 79 of 2014.

Accordingly the appeal succeeds, the order of the High Court upholding the conviction and sentence of the trial court is set aside with the result that the conviction is quashed and sentence set aside. The appellant will be presented before a magistrate with jurisdiction in the Magistrate’s Court at Kwale other than Ogembo, S.R.M. if he is still in the station, for the purpose of a fresh trial, within fourteen (14) days from the date hereof.

Dated and delivered at Malindi this 30th day of September 2015

ASIKE-MAKHANDIA

……………………….

JUDGE OF APPEAL

W. OUKO

……………………….

JUDGE OF APPEAL

K. M’INOTI

……………………….

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR