PNM v Republic (Criminal Appeal E068 of 2023) [2024] KEHC 8573 (KLR) (15 July 2024) (Judgment)
Neutral citation:
[2024] KEHC 8573 (KLR)
Republic of Kenya
Criminal Appeal E068 of 2023
AK Ndung'u, J
July 15, 2024
Between
PNM
Appellant
and
Republic
Respondent
(From original Conviction and Sentence in Nanyuki CM’s Sexual Offences Case No.E041 of 2023– Hon. B. Mararo, SPM)
Judgment
1.The Appellant, PNM was charged with Defilement contrary to Section 8 (3) of the Sexual Offences Act. In the alternative, he was charged with Committing an indecent Act with a child contrary to Section 11 (1) of the same Act. The particulars were that on the 3rd day of September 2023 in Kieni East Sub-County within Nyeri County unlawfully and intentionally caused his penis to penetrate the Anus of M.K.N a male child aged 13 years.He admitted the offence and was sentenced to serve 50 (fifty) years imprisonment.
2.The Appellant was arraigned before Court (Hon. Kithinji, CM) for plea on the 6/9/2023. The record of the court was as follows:Count 1: It is true.Plea of not guilty entered.Complainant/accused taken to hospital for treatment, examination.P3 form – P exhibit 1PRC form – P exhibit IITreatment notes P exhibit IIIAccused – facts are correctProsecution – NilAccused in mitigation
3.Section 348 of the Criminal Procedure Code provides that;
4.A scrutiny of the proceedings of 6/9/23 before the trial court shows that the Appellant was arraigned before Hon. Kithinji CM for plea taking. Inexplicably, the same record shows that the plea was taken by B. Mararo SPM on the same date. This anomaly goes to the root of the propriety of the plea. It is a clear manifestation of a despicable casual attitude in the conduct of very serious court business affecting the life and liberty of an accused person.
5.In effect, no proper plea was taken as there is no certainty from the court record of the Magistrate who took the plea.
6.On that reason alone the plea is vitiated and is amenable to a review by this court even without the necessity of an appeal.
7.I find it necessary to comment on apparent brevity in the taking of the proceedings during the plea which blurs clarity in the whole process. Whereas the exhibits in a trial are to be produced during the reading of the facts, such production must be clear from the record and the person moving the court be clearly shown to be doing so. In the present case, the P3 form, the PRC form and treatment notes are marked as exhibits without an indication that the prosecution moved the court in that direction.
8.While its appreciated that our courts are often times swamped with heavy workloads, brevity that obfuscates issues and renders a plea of guilty equivocal must be avoided.
9.The legal procedure to be adopted by a court taking a plea in a criminal trial was set down in Adan V Republic 1973 EA 445 where the Court of Appeal for East Africa considered the manner in which pleas of guilty should be recorded and the steps which should be followed. It laid down the following guidelines:i.The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language which 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 the facts or raises any question of his guilt his reply must be recorded and change of plea entered; andv.If there is no change of plea a conviction should be recorded and a statement of facts relevant to sentence together with the accused’s reply should be recorded.
10.I have perused the record of the plea taking court. There was no discernible departure from the above principle save for one glaring omission which, despite the summary allowing of the appeal herein for an incurable irregularity of uncertainty of before whom plea was taken, merits mention.
11.The accused faced a serious charge. It is now an established legal requirement that where an accused faces a serious charge that attracts a severe sentence, the court has the obligation to warn such an accused person of the consequences of pleading guilty.This requirement was emphasized in Hando s/o Akunaay Vs Rex (1951)18 EACA 307 where the court stated:
12.Sitati J in in the case of Benard Injendi -V – R[2017]eKLR, held as follows;
13.To buttress the point further the court in Elijah Njihia Wakaianda V Republic, Nakuru Criminal Appeal No. 437 of 2010 (2016) eKLR where the court stated that’’. …
14.In Simon Gitau Kinene Vs Republic (2016) eKLR where the accused faced a charge of Trafficking in Narcotic drugs, Joel Ngugi (J) held the following on the same issue involving an undefended accused person;(See also the sentiments of Odunga J in of Suleman Musa Kimbiriwa – V- Republic [2018] eKLR)
15.The cumulative effect of the above is that it is a legal requirement for a court taking plea to inform the accused person, especially where unrepresented, of the severity of consequences (read sentence) upon an own plea of guilt. In our instant case, this requirement did not find even the slightest of mention.
16.The result would be that this appeal would also succeed on this ground.
17.The appeal herein therefore has merits. The proceedings and sentence passed on the appellant are set aside. The dictates of justice would demand that the matter be referred for re trial before any other magistrate of competent jurisdiction other than Hon. Kithinji or Hon B. Mararo. It so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF JULY, 2024A.K. NDUNG’UJUDGE