Bob Maandu Robert v Republic (Criminal Appeal 2 of 2018) [2018] KEHC 3988 (KLR) (3 August 2018) (Judgment)

Bob Maandu Robert v Republic (Criminal Appeal 2 of 2018) [2018] KEHC 3988 (KLR) (3 August 2018) (Judgment)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL APPEAL NO. 2 OF 2018

BOB MAANDU ROBERT...........................................APPELLANT

VERSUS

REPUBLIC..............................................................RESPONDENT

(Being an appeal arising from conviction and sentence in

Senior Principal Magistrate’s Court (KIKUYU) in

criminal case no 3 of 2018  dated 9th January 2018

by Hon. G. Onsarigo RM.

JUDGEMENT

1. Bob Maandu Robert the appellant was charged and convicted of the offence of defilement contrary to section 8(1)(3) of the Sexual Offences Act No. 3 of 2006. The particulars were that the appellant on the 7th day of January 2018 at [particulars withheld] village in Kabete sub county within Kiambu county intentionally caused his penis to penetrate the vagina of N J a child aged 14.

ALTERNATIVE COUNT

Committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2016

The particulars being that the appellant on the 7th day of January 2018 at [particulars withheld]  village in Kabete sub county, Kiambu County of central region intentionally touched the vagina of N J a child aged 14 years with his penis.

2. The appellant was convicted on his own plea of guilty when he first appeared in court on 9th January 2018.  The charge and facts of the case had been read to him prior to the conviction and he admitted them. He was sentenced to twenty (20) years imprisonment.

3. Being dissatisfied he filed this appeal citing the following grounds:

(i) THAT the learned trial magistrate erred when he convicted him on his own plea without cautioning himself whether he had properly understood the charge and facts of the case.

(ii) THAT the learned trial magistrate erred when he convicted him on his own plea without cautioning himself whether he understood the language used when the charge was read to him.

(iii) THAT the learned trial magistrate failed to make sure that he had been informed of the charge, with sufficient detail to answer it.

(iv) THAT the learned trial magistrate erred in law when he failed to find that he was delayed to be brought to court before the expulsion of twenty four hours as required by article 49(1) (f)(i)(ii) of the Constitution.

(v) THAT the learned trial magistrate erred in law when he convicted him and sentenced him to serve 20 years whereas no birth certificate was attached to the facts of the case to prove the age of the complainant.

(vi) THAT he prayed that the case be taken back for retrial where he will be accorded a fresh plea and a full trial and his rights to challenge evidence will be accorded to him.

4. In his written submissions which he relied on, he urges the court to consider a fresh trial for him as he did to understand the interpretation of the particulars due to a language barrier. He says he is a Ugandan and understands very little Kiswahili. He further submitted that he was arraigned in court after 24 hours which violates article 49(1) (f) (i) of the Constitution.

5. He argues that he was not cautioned ever the consequences of pleading guilty to the charge.

6. He contended that the complainant’s case was not satisfactorily proved. Finally he argued that the sentence of twenty (20) years was too harsh.

7. Mr Maatwa opposed the appeal saying the charges were read to the appellant who understood them and admitted the charge. Facts were thereafter read to him. He submitted that the documents he mentions as having not been produced were produced i.e. the P3 and treatment notes which confirm that the complainant was 15 years of age.

8. Counsel said the appellant was arrested on 8th January 2018 and arraigned in court on 9th January 2018. That if he had any issues with that he could raise that before another forum.

DETERMINATION.

9. This is a first appeal and this court has a duty to re-evaluate a re-consider the evidence adduced and arrive at its own independent conclusion. See Okeno v Republic 1972 E.A 32, The appellant’s case did not proceed to full hearing as he was convicted on a plea of guilty. He has in this appeal raised several issues touching on the issue as to whether the plea was unequivocal.

10. First of all he says he is a Ugandan and understands very little Kiswahili, hence his failure to fully understand the particulars read to him. He says the complainant’s age was not proved and several documents were not produced.

11. Considering the nature of the charge facing the appellant, the trial court had a duty to ensure that the appellant clearly understood the charge facing him. The reason is that the charge is serious and carries a minimum sentence of twenty(20) years.

12.  Secondly, from the charge sheet it is indicated that the appellant is a Ugandan. The court had to be certain that the proceedings were interpreted to him in a language he understood.

13. A glance at the record shows the language of interpretation was English/Kiswahili. In what language was the charge read to the appellant? This is what the record shows:

“The substance of the charge(s) and every element therefore has been stated by the court to the accused person in the language he understands who being asked whether he/she admits or denies the truth of charge (s) replies Accused – True

Court; Plea of guilty entered.

14. Up to this point it is not shown in what language the appellant is communicating with the court. Being a Ugandan the record had to show that he understood well, English or Kiswahili or both of them.

15. It is true that after the plea of guilty was entered the facts of the case were stated. These are the facts as given.

“ Prosecutor: on 7/1/2018 at about 2300hrs the child N.J aged 14 years was in her room and the accused person got inside and ordered her to undress and he penetrated her severally. When the accused person had finished the act, the complainant had some noises and he went and knocked and found both of them. He arrested them and took to the police post, and later taken to Wangige Sub County Hospital and medical reports filed. I wish to produce the P3 form for the minor confirming the hymen was broken. A treatment card ex 2. A post rape case form as ex 3. Treatment card of the accused person as exhibit 4.

16. In Reading these facts one has to probe more to get to know what was happening yet the facts should be self explanatory for example.

Where was the scene/ where was this room belonging to the child N.I?

Who is being referred to as the complainant?

Were the P3, treatment order and post rape care forms and appellant’s treatment card (EXBs 1-4) even shown to the appellant?

§ It is no where stated in the facts read to the appellant that the child N.I was aged 14 years.

17.  The appellant could not have known that fact since the documents produced herein were never shown to him. It is not lost to the mind of this court that the appellant herein was un represented. The court was duty bound to take extra care to ensure that the appellant understood very well what was happening.

18. I wish to echo what Justice Joel Ngugi said in Paulo Malimi Mbusi v Republic Kiambu Criminal Appeal No 8 of 2016 on a similar issue. He stated thus:

“ In those cases (where there is an unrepresented Accused charged with a serious offence), care should always be taken to see that the Accused understands the elements of the offence, especially if the evidence suggests that he has a defence… To put it plainly then, one may add that where an unrepresented Accused person pleads guilty, to a serious charge which is likely to attract custodial sentence, the obligation of the court to ensure that the accused person understands the consequences of such a plea is heightened.”

19.  From the record produced above it has been shown that the trial court did not make any effort to satisfy himself that the appellant understood the charge, the seriousness of the said charge and the consequences of pleading guilty to such a charge. He never understood the nature of the documents (EXB 1-4) that were produced in court as they were not shown or read to him.

20. Upon considering all the circumstances of this case I find that the plea taken herein was equivocal and cannot stand and the sentence accompanying it cannot also stand. The appellant has been in prison for barely six(6) months.

21.  I therefore make the following orders.

(i) The conviction entered on 9th January 2018 in SPM’S Kikuyu S.O No. 3 of 2018 is hereby set aside.

(ii) The sentence of 20 years imprisonment imposed by the court is set aside.

(iii)  The appellant shall be remanded in police custody and arraigned before the SPM’s court Kikuyu for a fresh plea to be taken on 7th August 2018.

(iv) The plea should be taken by a magistrate with competent jurisdiction besides Hon. G. Onsarigo RM.

(v) The Deputy Registrar to ensure compliance of these orders. A copy of this Ruling to be forward to the Hon. G. Onsarigo Resident Magistrate.

Orders accordingly.

Dated, signed and delivered this 3rd day of August 2018 in open court at Kiambu.

....................................

HEDWIG. I. ONGU’DI

JUDGE.

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1. Sexual Offences Act 4874 citations
2. National Employment Authority Act 27 citations

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