Gathua v Republic (Criminal Revision 5A of 2023) [2025] KEHC 14379 (KLR) (5 June 2025) (Ruling)
Neutral citation:
[2025] KEHC 14379 (KLR)
Republic of Kenya
Criminal Revision 5A of 2023
NIO Adagi, J
June 5, 2025
Between
Peter Gichure Gathua
Appellant
and
Republic
Respondent
(Being an application of revision on conviction and sentence of Hon B.S. Khapoya in Principal Magistrate Court in Kithimani in Criminal Case No. 969 of 2022 on 5'" November 2021)
Ruling
Introduction
1.The Appellant Peter Gichure Gathua was charged with the following three offences:Count 1: Illegal refilling of Liquefied Petroleum Gas (LPG) cylinders without authority from brand owners to fill contrary to Section 13(1) and 14(a) of the Petroleum (Liquified Petroleum Gas) regulations as read with Section 99(1)(m) of the Petroleum Act, 2019.Count 2: Trading & Dealing with LPG cylinders of another licensee for gain without the licensee's prior consent contrary to section 99(1)(m) and 99(2)(b) of the Petroleum Act, 2019 and Regulation 18(1) of the Petroleum (Liquified Petroleum Gas) Regulations.Count 3: Transporting LPG without a valid license from EPRA contrary to Regulation 4(1)(2) and 17(1)(3) of the Petroleum (LPG) Regulations as read with section 101 of the Petroleum Act,2019.
2.The Appellant was arraigned before the trial court at Kithimani Principal Magistrate's Court on 15/10/2021 for plea where he pleaded not guilty to all the charges and the matter was set down for pre-trial. The Appellant granted bail/bond terms. On 5/11/21 the Appellant indicated that he wanted to change plea. The charges were read to the him a fresh and he pleaded guilty to all the charges.
3.The Prosecution thereafter read the facts of the case to the Appellant who responded that the facts were true. The Appellant was thereafter convicted on his own plea of guilt. The prosecution then indicated to the trial court that the Appellant was a first offender. The Appellant prayed for leniency indicating that he had a young family that depended on him and he was sickly. The trial court considered the mitigation and sentenced the Applicant to a suspended sentence of 6 months for each Count on 5/11/2021. The sentences were to run concurrently.
Applicant’s application
4.Being aggrieved by the decision of the trial court, the Applicant filed a Revision application vide the Chamber Summons dated the 21st March 2024 challenging the proceedings at the trial court in Kithimani Criminal Case No. E969 of 2021and prays for orders, inter alia;a)That this court be pleased to call for and examine the Record,Proceedings and orders of the Honourable B.S Khapoya (PM) in Kithimani Criminal Case Number E969 of 2021 on the 15th day of October 2021, the 28th day of October 2021 and on the 5th day of November 2021.b)That this Honourable Court be pleased to quash the plea of guilty on all three (3) Counts entered on record for being ambiguous, unclear, imperfect and or unfinished.c)That this Honourable Court be pleased to set aside the order of conviction entered by the Honourable B.S Khapoya on the 5th day of November 2021against the Applicant herein.d)That this Honourable Court be pleased to issue an order for retrial of Kithimani Criminal Case No. E969 of 2021 in order for the Applicant to take plea before a court of competent jurisdiction.e)That there be no orders as to costs.
5.That the application was premised on the grounds hereunder that;a.The conviction of the Applicant upon a plea of guilty that was not unequivocal.b.The failure by the Court to explain the elements of the charge to an accused person, who is unrepresented.c.The failure by the trial court to record the accused person's plea, in a language that the accused's preferred. language.d.The failure by the court to inform the accused person of the consequences of a plea of guilty.e.The failure of the prosecution to read the facts to the accused person.f.The failure by the prosecution to present the exhibits before the Trial Court, after and or while reading the presumed statement of facts before the sentencing of the accused person.
6.The application was directed to be canvassed through written submissions. The Applicant’s submissions are dated 1st November 2024 while the Respondent’s submissions are dated 11th February 2025.
Applicant’s Submissions.
7.The Applicant faulted the manner in which the plea of guilt was conducted. He submitted that the process of recording plea is stipulated under Section 207 (2) of the Criminal Procedure Code, Cap 75, Laws of Kenya, which provides that;
8.The Applicant submitted that on the 5th day of November 2021, he informed the trial court that, "I wish to change plea and travel out of the country and don't know when I will be back.”
9.That the above statement by the Applicant was the premise upon which the trial Court caused the charges to be read afresh to the accused person.
10.It was submitted that an interrogation of the simple meaning of the phrase as used by the accused leads to the deduction; that the accused person wished to change his plea of not guilty to a plea of guilty to for the sole reason of unfettering himself from further criminal proceeding before the trial court and enable him to travel out of the country.
11.It was the Applicant’s submission that the phrase used by the Applicant in its ordinary meaning, gives an interpretation that the accused person did not comprehend the following:a)The nature of the offence the accused person was charged with.b)The consequence of a plea of guilty; principally, the statutory mandatory minimum fines and jail sentences attached to the offences the accused person was charged with.
12.The Applicant therefore submitted that the statement made by Appellant ought to have reasonably led the Honourable Court to:i.Become cognizant of the fact that the Accused person, being unrepresented did not appreciate the nature of the charges.ii.Become cognizant of the fact that the Accused person, being unrepresented failed to comprehend the consequence of a plea of guilty and in consequence, the trial court ought to have;iii.Interrogated whether the Accused person understood the charges, by causing them to be read in Kiswahili.iv.Explain, in a language the accused understood, the consequences of a plea of guilty, including the mandatory fines and the sentence to serve in jail.
13.The Applicant relied the case of Okumu v Republic (Criminal Appeal E025 of 2023) [2024] KEHC 2618 (KLR)(11 March 2024) (Judgment), where S. CHIRCHIR, J while quashing a plea of guilty for being equivocal, on account of the charges read to accused in a language that he did not understand, held that:
14.The Applicant also referred to the case of Farahat Ibrahim Ahmed & 2 others. Vs. Republic, High court at Kisumu criminal Appeal No. 68 of 2016 the court while citing Aden vs. Republic (supra) held that "the danger of a conviction on an equivocal plea is obviously grievous where the accused is unrepresented, is of limited education and does not speak the language of the court".
15.It was submitted that the trial court bore a duty to the unrepresented accused person, to ensure that the charges as read to him were done so in Kiswahili, which the Applicant herein understood and further the prosecution bore a duty to the unrepresented accused person; to ensure that first, the facts were read to him and second that the facts were read to him in a language he understood best.
16.It was submitted that the in Titus Okumu Tito v Republic [2015] eKLR, J. A. Makau,J, cited and agreed with the court in BGM HC Revision Application No.744 of2013 Abraham Waafula v Republic in which the Court rendered itself thus;-
17.It was further submitted that the offences the Applicant was charged with carry a cumulative jail term of not less than five years.
18.That both the court and the prosecution failed in this respect and grievously comprised the chances of the Applicant to be afforded a fair trial as enshrined in Article 50 of the Constitution of Kenya 2010 and thus occasioned a grave miscarriage of justice, which the Applicant calls upon this Honourable Court to cure.
Respondent’s Submissions
19.The Respondent is opposed to the instance application. The Respondent submits that the trial court properly followed the procedure on the plea of guilt and the sentence was proper and legal.
20.The Respondent cited Section 207 of the Criminal Procedure Code which outlines the procedure that is to be followed during plea taking.
21.This section provides that when an accused person pleads guilty the admission should be recorded as nearly as possible in the words he used and the accused sentenced. The complainant is also awarded an opportunity to outline to the court the facts upon which the charge is founded.
22.The Respondent cited the case of Jackson Wambua v Republic [2022] eKLR where Justice Odunga J (as he was then) in quoting Ombena v Republic [1981] eKLR indicated that the Court of Appeal outlined the manner of recording plea of guilty by quoting Adan vs Republic [1973] EA 445 (Supra):
23.The Respondent submits that the Applicant indicates in paragraph 2 and 3 of their submissions that the Applicant in changing his plea and by indicating that he wanted to travel out of the country he did not comprehend the nature of the offence charged with and that he did not understand the consequence of the plea of guilt. This argument is misguided since it is not the trial courts place to interrogate the reasons as to why the Accused/Applicant would wish to change plea. This would force the court from abdicating from its role of being impartial. Unless there was reason to believe there was coercion or undue influence, it is not the court's place to interrogate the reasons for change of pleas. Further this was the third time the Applicant/Accused had the charges read out to him. He was fully aware of the nature of charges against him and fully aware of his actions.
24.It was further submitted that the record reflects that on 15/10/2021 the charge was explained and read over to the Applicant/accused in Kiswahili, a language he understands. The same took place on 28/10/2021 in Kiswahili, similar to 5/11/2021 when he pleaded guilty. The charge was read to him in Kiswahili a language he understands.
25.It was also submitted that the facts were put forth to the Applicant and he indicated they were correct. He did not dispute them neither did he deny them. He was rightfully convicted on his own plea of guilt.
26.The Respondent submitted that the provisions of Section 207 of the Criminal Procedure Code were followed. The charges were read to the Applicant in a language that he understands and he pleaded guilty. The prosecution thereafter presented the facts of the case to the Applicant and the trial court recorded that they were correct and thus he was convicted on his own plea of guilt. As per the law, the procedure was followed.
27.The Respondent argued that since the conviction and sentence of the Applicant arises from his plea of guilty, Section 348 of the CPC bars appeals from subordinate courts where an accused was convicted upon plea of guilty except on the extent and legality of sentence by providing that:
28.The Responded cited the case of Olel v Republic (1989] KLR 444, it was held that:-
29.That Odunga J in Anthony Muthonga Munene v Republic [2022] eKLR stated that:
follows that the Applicant is, by virtue of this section, and authority, barred from challenging the conviction and his only recourse was to challenge the extent or legality of the sentence imposed on him by the trial court. That bar, in my view only operates where the plea is unequivocal."
follows that the Applicant is, by virtue of this section, and authority, barred from challenging the conviction and his only recourse was to challenge the extent or legality of the sentence imposed on him by the trial court. That bar, in my view only operates where the plea is unequivocal."
30.In the Applicant's application, in point 3, he sets out that the Honourable court "entered on record a plea of guilt that was ambiguous, unclear, imperfect and/or unfinished..."
31.The Respondent submits that these are not reasons to seek revision on a plea of guilt. From the record the charge was explained to the Applicant from the first time he was presented before the trial court thus he was fully aware of the charges against him and understood the nature of charges against him. The Applicant pleaded twice before on the charges where he pleaded 'not guilty' before he 'pleaded guilty'. He was fully aware of the charges and nature of charges against him. The recording was not ambiguous nor unclear nor imperfect nor unfinished. The record speaks for itself and its very clear on the happenings before the trial court.
32.On the issue of sentence, the Respondent submitted that, in the Chamber Summons dated 21st March 2023, the Applicant indicates in point c that the offences as per the charge sheet against the accused disclose a custodial sentence.
33.The Applicant was sentenced to a suspended sentence. The Applicant indicates that the sentence prescribed in the at are a custodial sentence. We submit that the sentence issued by the court is a valid and correct Sentence. Section 15 of the Criminal Procedure Code. Part II Section 15 of the judiciary Sentencing guidelines provides that:
34.The Respondent submitted that it has now been decided that sentencing is at the discretion of the Court. The trial court did issue a valid and legal sentence to the Applicant in this case. Further, the Applicant was sentenced in 5/11/2021 for 6 months for each count, to run concurrently. As at the time of filing their application in 21st March 2023, the sentenced had been served and the Applicant was free unless lawfully held. It was submitted that this application was misguided, an afterthought and a waste of precious judicial time.
35.The Respondent submitted that the trial was not illegal and neither was it defective. The Applicant pleaded guilty and the correct procedure was followed, convicted on his own plea of guilty and a proper and legal sentence issued.
36.The sentence was legal and has since been served.
37.The Respondent urges this court to dismiss the application in its entirety as it lacks merit and uphold both the conviction and sentence.
Determination
38.I have considered the material before court, the submissions as well as the authorities cited and these are the views I form of the matter. Whether the Applicant’s plea of guilty was unequivocal and whether the suspended sentence was proper.
A. Whether the Applicant’s plea of guilty was unequivocal
39.Section 207 of the Criminal Procedure Code outlines the procedure that is to be followed during plea taking. It provides that: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 count 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.
40.Section 362 of the Criminal Procedure Code provides as follows:
41.Section 367 of the Criminal Procedure Code, on the other hand, provides as hereunder:
42.Section 364 of the Criminal Procedure Code provides as follows:1.In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may –(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by Sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.2.No order under this Section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.3.Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.4.Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.5.When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.
43.The trial record shows that the Appellant was arraigned before the trial court at Kithimani Principal Magistrate's Court on 15/10/2021 for plea where he pleaded not guilty to all the charges and the matter was set down for pre-trial. The Appellant granted bail/bond terms. On 5/11/21 the Appellant indicated that he wanted to change plea. He stated as follows: "I wish to change plea and travel out of the country and don't know when I will be back.”
44.The above statement by the Applicant was the premise upon which the trial Court caused the charges to be read afresh to the accused person. This court interprets the Appellant to have intended to have the plea deferred to allow him travel out of the country although he did not know when he would be back.
45.This court noted that the trial court did not interrogate the Applicant further to comprehend what he exactly meant. The record does not also show whether the Applicant was he informed of the consequences of pleading guilty to the charges and the nature of sentence he would face.
46.This court agrees with the Applicant’s submission that the phrase used by the Applicant in its ordinary meaning, gives an interpretation that the accused person did not comprehend the nature of the offence the Applicant was charged with and the consequence of a plea of guilty; principally, the statutory mandatory minimum fines and jail sentences attached to the offences the Appellant was charged with.
47.On the foregoing and guided by the authorities cited by both Counsel for the parties in this matter, it is my finding that the plea of guilty entered against the Applicant before the trial court was equivocal in the circumstances.
B. Whether the suspended sentence was proper.
48.Upon the Applicant pleading guilty to the 3 charges he faced, the trial court proceeded to convict him on his own plea of guilty and sentenced him to serve a suspended sentence of six (6) months.
49.Section 15(1) of the Criminal Procedure Code which prescribes suspended sentences provides as hereunder:
50.In my view, what this section means is that before the trial court decides to suspend the sentence, it must pass the sentence of imprisonment. That provision can only be invoked where the sentence passed is for a term of not more than two years.
51.From the trial court’s In this case, Section 99(1)(m) of the Petroleum Act under which Count I and Count II were brought provides that a person who refills, rebrands, trades or otherwise deals with liquefied petroleum gas cylinders of another licensee for gain without the said licensee's prior written consent commits an offence and shall on conviction, be liable to a fine of not less than ten million shillings, or a term of imprisonment of not less than five years, or to such fine and imprisonment. For Count III, Transporting LPG without a valid license from EPRA contrary to Regulation 4 (1) (2) and 17 (1) (3) of the LPG Rules as read with Section 101 of the Petroleum Act 2019, the Regulations provide at 5th Schedule that upon conviction, a person shall be liable to a fine of not less than Kenya Shillings Ten Million.
52.The Applicant, upon change of plea from not guilty to guilty was thereafter convicted in all the three counts and after mitigation, the trial court sentenced to him to suspended sentence of six (6) months which were to run concurrently.
53.In imposing the sentence, the trial court did not make any reference to the relevant Sections of the law which on the face of it did not permit the imposition of suspended sentences.
54.There seem to have been a patent error of law in sentencing the Applicant herein and as a result, the sentence imposed was irregular.
55.The Applicant was sentenced to a suspended sentence of 6 months for each Count on 5/11/2021. The sentences were to run concurrently. As at the time of filing the application herein in March 2023, the sentenced had long been served and the Applicant was free unless he was otherwise lawfully held.
56.Since the Applicant has already served the sentence for the offences he was charged with, he cannot be prosecuted again on the same charges as this shall amount to double jeopardy.
57.The application herein has therefore been overtaken by events although my finding in the premises is, I would allow the application, quash the sentence imposed on the Applicant herein, Peter Gichure Gathua, in Kithimani PM’s Criminal Case No. E969 of 2022 and direct that the matter be remitted before a different Magistrate with competent jurisdiction for retrial.
58.Accordingly, I proceed to close this file.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 5TH JUNE 2025NOEL I. ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 5TH JUNE 2025.In the presence of:Mr. Njoroge..... for ApplicantMs. Agatha................. for RespondentMilly............ Court Assistant