[2023] KEHC 26717 (KLR)

Wesonga v Republic (Criminal Appeal E043 of 2022) [2023] KEHC 26717 (KLR) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26717 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E043 of 2022

DK Kemei, J

December 15, 2023

Between

Zakayo Obukala Wesonga

Appellant

and

Republic

Respondent

(Being an appeal from the judgement and sentence of Hon. P.N Gesora (CM) in Bungoma Chief Magistrate’s Court Sexual Offence Case No. E035 of 2022 delivered on 6th April 2022)

Judgment

1. The Appellant, Zakayo Obakala Wesonga, was charged before the Senior Principal Magistrate’s Court at Bungoma in Sexual Offences Case No. E035 of 2022 with the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act, No. 3 of 2006. The particulars were that the Appellant, on diverse dates between 17th December 2021 and 8th March 2022 at (particulars withheld) in Bumula Sub-County within Bungoma County, intentionally and unlawfully caused his penis to penetrate the vagina of MNK, a child aged sixteen (16) years.

2. The Appellant also faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that the Appellant, on diverse dates between 17th December 2021 and 8th March 2022 at (particulars withheld) in Bumula Sub-County within Bungoma County, intentionally and unlawfully caused his penis to come into contact with the vagina of MNK, a child aged sixteen (16) years.

3. On 10th March 2022, the charge was read to the Appellant in Kiswahili, as it was his preferred language and that he pleaded guilty. Facts were then read to him and that he admitted the said facts. He was convicted on his own plea of guilty and was sentenced to Fifteen years’ (15 years’) imprisonment.

4. Being dissatisfied with the conviction and sentence, the Appellant has lodged the instant appeal based on the following grounds:i.That the learned magistrate erred both in fact and law when he failed to take cognizance of the fact that the Appellant’s plea to the Charges before the Court was equivocal.ii.That the learned magistrate erred both in fact and law when he passed a harsh and unconstitutional sentence against the Appellant.

5. The Appellant prayed for the lower Court’s conviction and sentence be set aside and/or quashed; that there be a re-trial and that this Court be pleased to make any other orders as it may deem just and fit.

6. The appeal was canvassed by way of written submissions. Both parties filed and exchanged their respective submissions.

7. Vide submissions dated 4th August 2023, the Appellant submitted on three key issues:i.Whether the plea taken by the Appellant before the trial Court was unequivocal.ii.Whether the elements of the offence of defilement were established by the Prosecution before passing sentence.iii.Whether the trial Court considered the provisions of section 8(5) of the Sexual offences Act before passing the sentence vis a viz the pre-sentence report.

8. On the first issue, Counsel for the Appellant submitted that the Appellant was charged with a serious offence which required proper caution and explanation at the time the plea was read to him. According to Counsel for the Appellant, the Appeal record on page five indicated that the facts were read to the Appellant but never translated to him prior to him taking the plea. This was prejudicial to the Appellant having been asked to respond to facts read to him in English, a language he didn’t comprehend well. Counsel submitted that upon his perusal of the lower Court records, the same showed no evidence that the facts were translated considering that the facts disclosed no offence considering the provisions under section 8(5) of the Sexual Offences Act. He relied on the case of Alexander Lukoye Malika vs Republic (2015) eKLR. He argued that the Appellant’s plea was equivocal and that as per the facts of the charge, the Complainant kept visiting the Appellant’s house on diverse dates and they would engage in sexual intercourse. According to Counsel for the Appellant, the trial Court never warned itself of the nature of the matter and the provisions under section 8(5) of the Sexual Offences Act, as the Complainant presented herself as an adult to the Appellant. Counsel relied on the case of K.N vs Republic (2016) eKLR.

9. On the second issue, counsel submitted that the Prosecution failed to avail an independent age assessment report to give credit to the birth certificate of the Complainant produced in Court, considering the conduct of the Complainant. The pre-sentence report filed proved the conduct of the Complainant as that of an adult. Counsel submitted that in admitting the plea on the basis of a birth certificate and subsequently sentencing the Appellant, the lower Court occasioned a miscarriage of justice. Further, Counsel submitted that the as per page two of the presentence report the last paragraph, the Complainant underwent an interview in which she stated that she was 20 years old and not 16 years old as indicated on her birth certificate. The Complainant had further stated that she was in a relationship with the Appellant and that she was not defiled. Counsel for the Appellant noted that the lower Court seemed to have disregarded the information as was contained in the pre-sentence report yet it ought to have warned itself at that point and ordered for an independent age assessment report.

10. On the third issue, counsel submitted that during the plea taking, the trial Court had a duty to establish whether the facts before the Court disclosed an offence against the Appellant as it is a pre-requisite of an unequivocal plea. Counsel submitted that the provisions pursuant to section 8(5) of the Sexual Offences Act must not be understated and that subject to the record of the appeal on page five line 17-18 and page six line 1-4 depict the conduct of the Complainant. Counsel submitted that an Appellate Court may interfere where the charge laid against an Appellant to which he pleaded guilty as it disclosed no offence known to law or where, the Appellant could not in law have been convicted of the offence charged. Counsel urged this Court to allow this appeal. Counsel relied on the case of Anthony Muthonga Munene vs Republic (2022) eKLR.

11. In opposition to the appeal, counsel for the Respondent submitted that the state established the three main ingredients of the offence of defilement and that on the issue of age, the Respondent produced a birth certificate indicating the age of the Complainant as 16 years old thus she was a child under the law. Counsel submitted that the Appellant failed to demonstrate or give reasons as to why the authenticity of the availed birth certificate ought to be questioned to warrant the independent report on the age of the Complainant. Counsel further argued that the conduct of the Complainant could not be tied to her age and that the availed birth certificate was enough proof that the Complainant was 16 years old and a minor at that.

12. On the aspect of the Appellant’s plea being equivocal, Counsel for the Respondent submitted that the lower Court record reflects that after he pleaded guilty to the charge, facts were read out to him and exhibits were produced. Counsel submitted that the lower Court followed the procedure as laid down under the provisions of of the Criminal Procedure Code thus the Appellant’s plea was unequivocal. Counsel relied on the case of Obedi Kilonzo Kevevo vs Republic (2015) eKLR.

13. On the argument that the plea was equivocal since the facts were read to the Appellant but were not translated, Counsel for the Respondent submitted that the same is an afterthought and misleading to this Court as the lower Court record on page one just below the Coram indicates that the interpretation was done in Kiswahili. Counsel submitted that the Appellant was convicted on his own plea of guilty and may only be allowed to lodge an appeal on sentence. Counsel relied on the provisions under section 348 of the Criminal Procedure Code which provides that no appeal shall be allowed in the case of an accused person who pleaded guilty and was convicted on that plea except as to the extent or legality of sentence.

14. On the defence as availed pursuant to section 8(5) of the Sexual Offences Act, Counsel for the Appellant submitted that there was sufficient evidence to show that the Appellant had a relationship with the Complainant who was a minor and that the provisions under section 8(5) of the Sexual Offences Act offer a defence if it is established that the Complainant deceived the Appellant into believing that she was over the age of eighteen years at the time of the commission of the offence. This provisions require the Appellant to show the steps he undertook to ascertain the age of the Complainant. The argument by the Appellant that the Complainant went to his house voluntarily indicated no offence was committed is no defence. Counsel relied on the case of Royton Muriungi Kirimi vs Republic (2020) eKLR.

15. According to Counsel for the Respondent, the Appellant failed to demonstrate that the Complainant deceived him and what active steps he undertook to determine the age of the Complainant. Counsel urged this Court to dismiss the appeal in its entirety as it lacks merit as it is simply a move by the Appellant to avoid taking responsibility for his actions.

16. I have considered this appeal, submissions by Counsel for the parties and the authorities relied on. I have also perused the record and considered the judgment of the trial Court. This being a first appeal, it is the duty of this Court as the first appellate Court to reanalyse, reassess and reconsider the evidence adduced before the trial court and come to its own conclusion.

17. In Kiilu& Another v Republic [2005]1 KLR 174, the Court of Appeal held that:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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; 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.”

18. This appeal arises from a conviction on a plea of guilty. The Counsel for the Respondent argued that the law disallows appeals against conviction where such conviction was on the basis of one’s own plea of guilt. They have relied on section 348 of Criminal Procedure Code to support their argument. Section 348 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.”

19. It has been argued on behalf of the Appellant that the plea was equivocal and therefore this is a proper appeal for this Court to consider both on conviction and sentence. Counsel for the Appellant has argued relying on section 207 of the Criminal Procedure Code and authorities that the plea of guilty recorded by the trial Court against the Appellant was equivocal and, therefore, the conviction was unsafe and the sentence erroneous.

20. Section 207 of Criminal Procedure Code provides how a pea should be taken. It provides:“(1)The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement.(2)If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary:Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded.(3)If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided.(4)If the accused person refuses to plead, the court shall order a plea of “not guilty” to be entered for him.(5)If the accused pleads—(a)that he has been previously convicted or acquitted on the same facts of the same offence; or(b)that he has obtained the President’s pardon for his offence, the court shall first try whether the plea is true or not, and if the court holds that the evidence adduced in support of the plea does not sustain it, or if it finds that the plea is false, the accused shall be required to plead to the charge.”

21. The section gives the manner in which a plea should be recorded. In the appellants’ view, the plea recorded was equivocal. They also blamed the trial Court for not explaining to the Appellant the meaning of the plea and inform him of the consequences of pleading guilty in a language that he understood. They have relied on a number of decisions to support this argument.

22. Further, the Court of Appeal in Ombena v Republic [1981] eKLR cited with approval the procedure for the recording of a plea of guilty as established in Adan v Republic [1973] EA 445 as follows:“In Adan v Republic [1973] EA 445, the Court of Appeal laid down in the simplest and plainest terms the manner in which pleas of guilty should be recorded and the steps which should be followed. It is appropriate to set out the holding in full—“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 the facts relevant to sentence together with the accused’s reply should be recorded.”

23. It is on this basis that i examine the record to ascertain whether the plea entered was unequivocal. At page five of the record of appeal, it is shown that the Appellant took plea on 10th March 2022. The language used by the Court is indicated as ‘’interpretation-Kiswahili’’. The Coram is also indicated where one Lopuomoi was the Court Assistant. Ordinarily, it is always the Court Clerk or the Court Assistant (as presently known) who serves as the interpreter of the Court proceedings. The obvious exception to this rule is always where the Court assistant is not fluent in the preferred language of an accused. The records then states:“Magistrate: Hon. P.N. Gesora CMState Counsel: TarusCourt Assistant: LopuomoiCourt: The substance of the charge and every element thereof has been stated by the court to the accused in Kiswahili a language that he understands, who being asked whether he admits or denies replies;Accused: It is true.Facts: on 17th December 2021 the Complainant went to the home of the Accused at [Particulars withheld] Village after an altercation with her parents.She engaged in sexual intercourse with the accused. She then went home. She kept visiting accused on different dates between December 2021 to March 2022. In the month of February, 2022, she discovered that she was expectant.Fearing her parents, she went to Accused’s house where they started co-habiting. The Complainant’s father reported the same to the Assistant-Chief. She was traced in accused’s house and they were arrested and taken to Bumula Police Station.The Complainant was escorted to Bumula County Hospital where she was examined and found to be expectant and that her vagina had lacerations. I wish to produce the treatment notes and P.3 Form.Treatment-P. Exhibit 1P3 form-P. Exhibit 2We also have the Complainant’s birth CertificateBirth Certificate-P. Exhibit 3She was 16 years old at the time of the incident. Accused was then chargedAccused: Facts are correctCourt: Accused is guilty on own plea and is convicted.”

24. In mitigation, the Appellant is recorded; “I pray for leniency. I am an orphan.” The Court then recorded:“Remanded in custody till 17th March 2022. Pre-sentence report to be filed.”

25. On 6th April 2022, the lower Court after considering the Appellant’s pre-sentence report and the circumstances under which the offence was committed proceeded to sentence the Appellant to fifteen years’ (15) imprisonment.

26. As already reproduced above, section 207 of Criminal Procedure Code, is clear that the Court when taking plea should record as nearly as possible, the words the accused uses in answering to the charges. The trial Court recorded the words “true” and “facts are correct” English words, yet the appellant was answering the charge in Kiswahili translated into English because the charge was read to him in Kiswahili. It is not clear to this Court which exact words the Appellant used in Kiswahili that would be as nearly as possible to the answer he gave to the plea that would be equivalent to or as near as possible to “It is true” and “facts are correct”.

27. Second, the Appellant faced a serious charge and that the record is silent on whether the trial Court warned the Appellant on what the plea of guilty meant and the consequences to expect for pleading guilty to the charge he was facing.

28. In Osike Emongonyang’ & 2 Others v Republic (Criminal Appeal No. 69 of 1990, [1996] eKLR the Court of Appeal sounded a warning that trial Courts should not readily accept pleas of guilty in serious offences unless satisfied that the accused understood what to expect for such a plea. In that case the Appellants had twice pleaded guilty to the charge after it was read and explained to them in Teso language and were convicted on their own plea of guilty. On a second appeal, the Court of Appeal was satisfied that the plea was voluntary and unequivocal. What however was of concern to the Court was failure to warn the Appellants on the consequences they faced for pleading guilty.

29. The Court expressed the concerns as follows:“But what has given us considerable unease, is the further argument advanced in support of the present appeal that the fact that the appellants had not been warned of the dire consequences that would befall them if they changed their plea of not guilty to one of guilty, rendered their plea of guilty defective and the retrial a mistrial. We think that there is merit in this argument.”

30. The Court then referred to its own decision of David Mundia Onkoba v. Republic Criminal Appeal No. 14 of 1990, where it was satisfied with the warnings the trial magistrate had given to the Appellant in that case as to the mandatory death sentence which he would be bound to impose upon the Appellant if he pleaded guilty to the charge of robbery with violence. The court had stated in that case:“The principal magistrate then informed the appellant of the mandatory sentence of death prescribed for that offence and asked him if he understood that. After the appellant confirmed that he had understood all that was explained to him the Principal Magistrate then asked him if he still wished to plead guilty to that offence for which the magistrate could only sentence him to death the appellant replied. Yes, because I committed this offence.... In fact as we pointed out earlier, and as did the learned judges, the Principal Magistrate was reluctant to accept a plea of guilty. Time and again he had warned the appellant of the mandatory sentence of death which the law prescribed."

31. The Court of Appeal then stated:“Granted that the Senior Resident Magistrate's court is not a court from the decision of which, no appeal lies, it must still be remembered that the appellants were unrepresented; that since they had not been warned of the dire consequences of their plea of guilty to the offence charged, they had been as it were, sentenced to death "out of the blue so to speak"; and had thus, had no chance to change their minds about pleading guilty as charged or to consider the devastating effect of their decision to plead guilty.”

32. Guided by the above decisions, it is not clear to this Court that the Appellant understood the charge and the consequences of the plea he was returning to that charge. Although the decisions referred to above dealt with the charge of robbery with violence which carried a mandatory death penalty, the same can be said of the offence of defilement of a child aged 16 years which carries a mandatory minimum sentence of 15 years’ imprisonment. It is a serious offence and the sentence is severe. One must be fully aware of the consequences to expect if he pleads guilty.

33. The Appellant was unrepresented and that the trial Court did not warn him that he would probably be jailed for not less than 15 years if he pleaded guilty. If the trial Court had done so and the Appellant maintained his plea, the plea of guilty would be voluntary and unequivocal. The Appellant would also have an opportunity to rethink the decision to plead guilty once it was made clear to him the sentence that awaited him for that plea. In the circumstances, therefore, I agree with the Appellant’s counsel that the trial Court did not exercise caution in this matter and that the plea of guilty recorded against the Appellant was neither voluntary nor unequivocal.

34. Having determined that the Appellant’s conviction based on his plea of guilty was unsafe, the question that remains is whether this Court should order a retrial. Whether or not to order a retrial is a matter at the discretion of the Court to be decided based on the circumstances of each case. The Court must take into account factors such as public interest and the cause of justice.

35. In Ahmed Sumar v R [1964] EA 483 the East Africa Court of Appeal held that:“…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 purposes 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”

36. Further in Pius Olima & Another v Republic [1993] eKLR, the Court of Appeal stated that a retrial may be ordered where the original trial is defective, if the interest to justice so require and if no prejudice is caused to the accused. Whether an order for retrial should be made ultimately depends on the particular facts and circumstances of each case.

37. And in Laban Kimondo Karanja &2 others v Republic [2006] eKLR, Khamoni, J. reiterated the factors to be taken into account in deciding whether to order a retrial and stated:“In general a retrial will be ordered only when the original trial was illegal or defective, and from the particular facts and circumstances of the case, the appellate Court, or the court on revision, is of the opinion that on a proper and judicious consideration of the admissible or potentially admissible evidence, a conviction might result, and further that the court is satisfied, not only that the interests of justice require the order for a retrial to be made, but also that such an order when made is not likely to cause injustice to the accused person.”

38. Applying the above principles to this appeal, an order for a retrial should not be made if it will cause prejudice to the Appellant or where on the admissible evidence on record the retrial will return a conviction. In this appeal, the Appellant’s case did not go to trial and therefore this Court cannot determine whether there would be likelihood of a conviction should a retrial be ordered. The Court must also be alive to the fact that both the Appellant and the Complainant are entitled to justice.

39. The Prosecution did not have an opportunity to present evidence before the trial Court because the Apellant pleaded guilty to the charge. I am of the view that it is in the interest of justice that a fresh trial is conducted to give the Prosecution a chance to prove its case against the Appellant. This will serve interests of justice given that the offence was only committed between 17th December 2021 and 8th March 2022, and there is no indication that the Prosecution will not be able to procure its witnesses. Further, the appellant has not spent a lot of time in custody.

40. In view of the foregoing observations, I find merit in the appeal. The same is allowed. The conviction is quashed and sentence set aside and substituted with an order for a retrial. The Appellant is ordered to be produced before the Chief Magistrate Bungoma on the 18/12/2023 for the purposes of the retrial.It is so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 15TH DAY OF DECEMBER 2023. D. KEMEIJUDGEIn the presence of:Zakayo O Wesonga for AppellantMwaniki for Respondent