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JudgmentABDI ALI ABDI VS The Republic7 min read

ABDI ALI ABDI VS The Republic

High Court at Malindi High Court · · M Thande

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CRIMINAL APPEAL NO. E077 OF 2024

ABDI ALI ABDI …………………...…………………..…………...……………………..APPELLANT  

VERSUS

REPUBLIC…………………..…………………………………...……………………….RESPONDENT  

JUDGMENT

  1. The Appellant was charged with the offence of being unlawfully present in Kenya contrary to Section 53(1)(j) as read with Section 53(2) of the Kenya Citizenship and Immigration Act, 2011. The particulars of the offence are that on 1.8.24 at around 0900 hours at Sabaki bridge roadblock  area in Magarini sub-county, Kilifi county, being a Somali national he was found without any valid document permitting his stay in the country in contravention with the said Act.  The Appellant was arraigned in court on 2.8.24. He pleaded guilty and was convicted. The trial court discharged the Appellant and directed the Immigration Department to repatriate the Appellant to Somalia. The court further directed that the Appellant remains in custody pending repatriation. 
  2. Being aggrieved with both the conviction and sentence the Appellant filed this Appeal. The summarised grounds of appeal as set out in his petition of appeal dated 8.8.24, are that the trial Magistrate erred by:
  3. Convicting the Appellant on a plea that was not unequivocal.
  4. Not explaining to the Appellant his rights under Article 50(2)(g), (h) and (m) of the Constitution with regard to representation by an advocate or assigned to him and paid for by the State.
  5. Failing to provide the Appellant, a Somali, with a Somali interpreter.
  6. The Appellant filed written submissions as directed by the Court. The Respondent conceded the Appeal.
  7. It is the Appellant’s case that the plea was not unequivocal and that given that the Appellant is a Somali national as was indeed indicated in the charge sheet. Further that the trial court indicated that the Appellant understood Kiswahili yet the was charge was read in English with no indication on the record that the same was interpreted from English to Kiswahili. The Appellant relied on the case of Anthony Muthonga Munene v Republic [2022] eKLR where Odunga, J (as he then was) stated that that the charge, the particulars and the facts must be read to the accused in his language or in a language he understands. 
  8. I have considered the submissions by the Appellant. For a conviction on a plea of guilty to stand, the plea must be unequivocal.
  9. In the leading case of Adan v Republic [1973] EA 445, the Court of Appeal stated that a plea of guilty is to be recorded as follows:
    1. 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;
    2. the accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded;
    3. 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;
    4. 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;
    5. 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.
  10. In order to determine whether the charge was unequivocal it is necessary to look at the record, which is reproduced below:

The substance of the charge(s) and every element thereof has been stated by the court to the accused person in the language that he/she understands, who being asked whether he/she admits or denies the truth of charge(s) replies in Swahili which he states he understands.

Accused - Ni kweli

  1. The record shows that the charge and all the essentials thereof were read to the Appellant in the language he understands. His own words were recorded and because they were an admission, a plea of guilty was entered. The facts were then stated to the Appellant and he again admitted by stating “ni ya kweli” and this was recorded.
  2. As regards language, the record shows that the charge was read and explained to the Appellant in Swahili, the language he understood. The Court stated as much. Indeed, upon conviction and before sentence, the Appellant was able to mitigate coherently. At no point was it brought to the attention of the court that he did not understand the plea and facts as read to him. He accordingly did not require an interpreter. 
  3. In light of the foregoing, I find that the plea was unequivocal, the same and the facts thereof having been read to the Appellant in a language that he understood. This ground must therefore fail.
  4. The Appellant further faulted the trial court for failing to explain to the Appellant of his right to be represented by an advocate and an interpreter as stipulated under Article 50(2)(g), (h) and (m) of the Constitution. He contended that he was denied the right to a fair trial and urged the Court hold that there was a mistrial and allow the Appeal.
  5. Article 50(2) of the Constitution guarantees to every accused person the right to a fair trial. A key aspect of this right is the right of an accused person to be represented by an advocate and to be informed of this right promptly. Article 50(2)(g) of the Constitution provides:

Every accused person has the right to a fair trial, which includes the right—

(g)  to choose, and be represented by, an advocate, and to be informed of this right promptly;

(h)  to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;

  1. The Court has already made a finding regarding the issue of an interpreter. I now turn to the other ground.
  2. The right to legal representation is a fundamental human right and critical to the realization of a fair trial. In the celebrated case of Pett v Greyhound Racing Association, (1968) 2 All E.R 545, at 549, Lord Denning succinctly stated as follows regarding the right of an accused person to be represented:

It is not every man who has ability to defend himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A magistrate says to a man; 'you can ask any questions you like;' whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has trained for the task?"

  1. The constitutional right to a fair trial is sacrosanct and is non-derogable. It is a right that is not subject to the limitation provided under Article 24 of the Constitution and is indeed listed in Article 25 among the rights that may not be limited as follows: 

25.  Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited––

(c)  the right to a fair trial;

  1. In the case before me, the Appellant was convicted of the offence of being present in Kenya unlawfully and was convicted on his own plea of guilt. The offence is a felony and carries a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years or to both;
  2. The trial court was obligated to promptly inform the Appellant of his right to representation by an advocate of his choice. There is however nothing on record showing that the trial court informed the Appellant of this right. The trial court thus failed to comply with the express provisions of Article 50(2)(g) of the Constitution, thereby denying the Appellant the right to a fair trial and occasioning him substantial injustice. It follows that the proceedings in the trial court and conviction of the Appellant stand vitiated.
  3. The mistake leading to the vitiation of the conviction is entirely of the trial court’s making. Releasing the Appellant however, not be in the public interest or in the interest of justice.  Considering the seriousness of the offence, my view is that public interest will be better served by a retrial.  I am in this regard guided by the holding in Muiruri v Republic [2003] eKLR, where the Court of Appeal stated as follows, regarding a retrial:

What agonized our minds was the consequential order sought for retrial. Mr Kithi, learned counsel for the appellant, opposed the order for retrial and called for the appellant’s acquittal, citing the long period elapsed between the appellant’s arrest and the hearing of this appeal which is about 15 years. Generally, whether a retrial should be ordered or not must depend on the particular facts and circumstances of each case. It will only be made where the interests of justice require it and if it is unlikely to cause injustice to the appellant. Some factors to consider would include, but are not limited to, illegalities or defects in the original trial (See Zededkiah Ojuondo Manyala v Republic (Criminal Appeal No 57 of 1980); the length of time which has elapsed since the arrest and arraignment of the appellant; whether the mistakes leading to the quashing of the conviction were entirely of the prosecution’s making or the Court’s.

  1. Accordingly, I do allow the Appeal, quash the conviction and sentence of the Appellant. I order a retrial to be conducted on a priority basis by a Magistrate other than Hon. Onalo J. K. Olga. To this end, the Appellant shall be produced before the Malindi Chief Magistrate’s Court on 12.11.24 for the purposes of taking plea in the new trial.

DATED SIGNED and DELIVERED vis MS Teams this 11th day of October 2024

_____________________

M. THANDE

JUDGE

    ABDI ALI ABDI VS The Republic ABDI ALI ABDI VS The Republic