REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CRIMINAL APPEAL NO. 268 OF 2004
(From original conviction and sentence in criminal
case No. 2251 of 2004 of the Chief Magistrate’s Court
at Nakuru – G. C. Mutembei )
DOUGLAS ONGAKI……………………………..APPELLANT
VERSUS
REPUBLIC………………………………………RESPONDENT
JUDGMENT
The Appellant, Douglas Ongaki was charged with the offence of being in possession of Narcotic drugs contrary to Section 3(1) as read with Section 3(2) of the Narcotic drugs and psychotropic substances control Act, Act No. 4 of 1994. The particulars of the offence were that on the 23rd September 2004 at GG Estate within Gilgil township the Appellant jointly with others was found in possession of two and a half kilograms of cannabis sativa (bhang) with a street value of Kshs 3000/= which was not meant for medical purposes or authorised under the regulations of the said Act. When the Appellant was arraigned before the Senior Principal Magistrate, Nakuru he pleaded guilty to the charge. He was duly “convicted” and sentenced to serve three years imprisonment. The Appellant was aggrieved by the conviction and sentence. He has Appealed to this court against the said conviction and sentence.
At the hearing of this Appeal, Mr Gumo the Assistant Deputy Public Prosecutor conceded to the Appeal. He submitted that the plea taken by the trial magistrate was equivocal. It was his submission that the plea of guilty recorded was not in accordance with the procedure provided by the Criminal Procedure Code. He further submitted that after the plea of guilty was entered, and after the facts of the case were read to the Appellant, the trial magistrate did not enter a conviction against the Appellant on his own plea of guilty.
The Learned Assistant Deputy Public Prosecutor submitted that as the consequence of the failures on the part of the trial magistrate the plea of guilty that was entered was equivocal and therefore could not be sustained. Mr Gumo urged the court to allow the Appeal and order that a fresh plea be taken before another magistrate other than the Senior Principal Magistrate, Nakuru. On his part, Mr Karanja, Learned Counsel for the Appellant did not oppose the Appellant to be retried. He suggested that the Appellant should be retried by the Principal Magistrate, Naivasha.
I have perused the proceedings of the trial magistrate. When the charge was read to the Appellant in Kiswahili, the said trial court recorded that the Appellant had replied “guilty”. According to the leading decision on the recording of a plea of guilty in criminal cases, that is, Adan – versus- Republic [1973] EA 445 the trial court was supposed to record the answer that an accused person gives when the charge was read to him, in so far as possible, in the exact words that the accused person used.By recording the word “guilty” which is a technical legal term, not ordinarily known to laymen, and especially if the person is answering to the charge in Kiswahili language, the trial court did not adhere to the direction given by the Court of Appeal in the above case that the words which an accused person answers a charge should be recorded in the exact words that he used. In the instant case the Appellant could not have answered “guilty” especially considering that there is no word in Kiswahili language which can be directly translated to approximate the English word “guilty”. The Appellant must have used some other words which the trial magistrate transcribed to imply that the Appellant had admitted to the legal meaning of the word “guilty”. Further after the Appellant had pleaded “guilty” the court ought to have recorded that a plea of guilty was entered against him.
In the instant case that was not done. The trial magistrate immediately recorded the facts in support of the charge. It is when the Appellant had admitted the facts to be true and correct that a plea of guilty was entered.At this stage what the trial magistrate ought to have done was to convict the Appellant on his own plea of guilty. When the Appellant was therefore sentenced to serve a term of three years imprisonment, the Appellant had not infact been convicted. In the circumstances therefore, the Learned Assistant Deputy Prosecutor had no option but to concede to the Appeal. The plea was not properly taken as directed by the provisions of Section 207 of the Criminal Procedure Code and the directions given by the Court of Appeal in the case of Adan –versus- Republic [1973] EA 445 at 446.
The Appeal filed by the Appellant is consequently allowed, the conviction quashed and the sentence imposed set aside. The Appellant is ordered to appear before the Principal Magistrate, Naivasha on the 23rd of November 2004 when the plea for the offence which he was charged shall be taken afresh. The Appellant shall remain in custody until the said 23rd of November 2004 when he shall be taken before the Principal Magistrate Naivasha.
It is so ordered.
DATED at NAKURU this 19th day of November 2004.
L. KIMARU
AG. JUDGE