(Being an Appeal against the conviction and sentence by Hon. V. Karanja - Principal Magistrate in Iten Senior Principal Magistrate’s Court Case No. E072 of 2024, delivered on the 14th August, 2024)
JUDGEMENT
1. The Appellant was charged with the offence of Conspiracy to Defeat Justice and interference with witnesses contrary to Section 117 of the Penal Code. The particulars of the offence were that on the 8th day of August at Iten Law Courts, Kapchemutwa location in Elgeyo Marakwet County, while posing before court as the complainant’s father and mother respectively, he wilfully and unlawfully conspired with the accused person charged with the offence of defilement before court, to deny the complainant justice, by telling the honourable court of law to acquit the accused since they had settled the defilement case out of the court.
2. The Appellant pleaded guilty to the offence and the facts of the offence were read out, as per the charge sheet, in open court. The Appellant confirmed that the facts were true and the trial court proceeded to convict the Appellant and his co-accused. They were offered an opportunity for mitigation and upon considering the same, the trial magistrate sentenced the appellant to five years’ imprisonment.
3. Dissatisfied with the conviction and sentence, the Appellant instituted the present appeal vide a Petition of Appeal filed on 04/09/2024. The grounds of appeal are as follows, verbatim;
1) That (I) am challenging the plea of guilty entered on trial proceedings on the basis that it was equivocal as the statement of facts version was not exactly the position (I) was pleading to. (I) am relying on the authority of Adan v Republic (1973) EA 446 which held that the particulars of the offence on the charge sheet and the facts read out by prosecutor did not reveal an offence, that is, agreeing to settle the attempted defilement involving (my) son out of court with courts permission.
2) That the facts that were read out to (me) were not entirely accurate on the reason that what the father to the complainants did by asking the court if it would permit the settlement of the case out of court process does not amount to an offence, it does not also become a conspiracy when he expressed his desires to the court therefore it did not reveal an offence under the law. (I) am relying on the Authority of Obedi Kilonzo v Republic (2015) which held that facts presented in court must disclose the offence as the witnesses did not testify.
3) That the alleged event in court by complainant's father does not reveal (my) exact role in the alleged offence. In addition, (I) was not present in court when he addressed the court on the matter and was arrested four days after the incident. This was a mistrial and a miscarriage of justice as (l) could not have conspired in absentia.
4) That the trial erred in law and fact by committing a procedural impropriety in not offering an opportunity to the appellant to offer mitigation statement before his sentencing and was asked after his sentencing what he had to say after getting a maximum sentence prescribed, violating his right under Article 25 of the Constitution of Kenya This omission denied (me) a benefit of a shorter, appropriate sentence in compliance to Article 50 (2) (p) of Constitution.
5) That the trial magistrate erred in law and fact by imposing a harsh & excessive sentence in the circumstance of the case, in this instant the 5 years is the maximum under that provision (I) was sentenced under.
6) That, the trial magistrate erred in law and fact by charging me with a charge which is defective on the basis of duplicity where (I) was charged for conspiracy to defeat justice and interference with witnesses which are three (3) distinct offences under Section 117 of the Penal Code. This created ambiguity as to what the was sentenced on the imposed 5 years.
Hearing of the appeal
4. The appeal was canvassed by way of written submissions. The appellant filed submissions on 28/04/2025 whereas the Respondent filed submissions on 27/02/2025 through Prosecution Counsel Rachel Mwangi.
Appellants’ Submissions
5. The appellant submitted that his plea was equivocal and further, that the outline of facts which founded the charge he was facing were not accurate, therefore, the plea of guilty was equivocal. He stated that by extension the conviction was not proper and safe. He further submitted that the particulars of the offence on the charge sheet and the facts that were read out by the prosecutor in this instant, agreeing to settle the attempted defilement involving his son out of court with courts permission. That the facts were not sufficiently particularized to make it possible for the appellant to understand the charge he was answering to which was made worse by the charge being duplex. This violated the principle of prosecution where the prosecution failed to present accurate information of the offence as it is a requirement for the accused to know of what is alleged against him.
6. The appellant stated that the court did not warn him of the consequences of pleading guilty and he was not given a chance to add relevant facts in the case. Further, that in general the rules of recording plea of guilty did not conform to Section 207 of Criminal Procedure Code or the rules held in Adan v Republic (1973) EA 446. The Appellant submitted that the court should find the charge to be defective, that the plea was not equivocal and allow the appeal.
7. The appellant submitted that the co-accused acted alone in seeking permission from the court to settle the pending attempted defilement case involving their children. That it did not amount to conspiracy as one person cannot commit conspiracy. He cited Section 176 of the Criminal Procedure Code, urging that it in fact requires the court to offer facilitation for reconciliation for disputing parties in a case. That the trial magistrate took offence for being asked permission and misdirected herself that that act amounted to a conspiracy and interference with witnesses.
8. The appellant submitted that the sentence of 5 years was very harsh and excessive in consideration that it was the maximum available sentence. He cited Article 50 (2)(p) of Constitution of Kenya, urging that it makes it a constitutional right for the appellant to receive the least severe sentence available in the circumstances of his case. It is on this account that the appellant invited this court to consider it as a good ground to interfere with the discretion of the sentencing court. He urged that it was a deliberate act not to be offered an opportunity to mitigate before sentencing, but that he was asked in passing if he had anything to say after being sentenced. He placed reliance on the case of Shadrack Kipkoech Kogo vs Republic – Eldoret Criminal Appeal No. 253 of 2013.
9. He reiterated that the charge sheet was defective as the charge was duplicitous. That under Section 117 of the Penal Code there are three other distinct offences and the same was not specified. He stated that the error of charging him with a duplex charge is not curable under Section 382 of the Criminal Procedure Code as the offences have different penalties under the law and the ingredients are also different. The duplicitous nature of his case made the whole trial proceeding null and void which amounts to a mistrial. He urged the court to allow the appeal in this ground.
Respondents’ case
10. Prosecution counsel conceded the appeal on the ground that the plea was equivocal. She cited the provisions of Section 207(2) of the Criminal Procedure Code in this regard and submitted that the appellant pleaded guilty to the offence as charged but the prosecution did not read the facts to the appellant as required by law. That the prosecution counsel only stated that the facts were as per the charge sheet. She further submitted that Section 207(2) of the Criminal Procedure Code requires that the prosecution outlines a summary of the facts for the accused person to admit or dispute the facts. Counsel cited the case of Benard Saidimu & 4 others v Republic [2019] eKLR and stated that merely stating that facts are as per the charge sheet does not meet the legal threshold for taking an unequivocal plea.
11. The Respondent stated that the trial was however not defective and urged that it is in the interest of justice that this court be pleased to order a retrial, placing reliance on the case of Makupe v Republic (1989) eKLR in which the court held that in general, a retrial will be ordered when the original trial was illegal or defective, it will not be ordered where the convictions is set aside because of the insufficiency of the evidence or to enable the prosecution to fill up gaps in the evidence at the first trial, even where a conviction is vitiated by a mistake of the trial court for which the prosecution to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for a retrial should only be made where the interests of justice require it and it should not be ordered where it is likely to cause an injustice to the appellant or accused.
12. Counsel urged the court to set aside the conviction and sentence and order a retrial.
Analysis & Determination
13. Having considered the Application and the submissions, it is my considered opinion that the following issue arises for determination;
Whether the accused plea of guilt was unequivocal
14. Section 364 (1) of the Criminal Procedure Code provides:
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.
15. Section 348 of the Criminal Procedure Code provides as follows on appeals against conviction on a plea of guilty
"No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate Court, except as to the extent and legality of the sentence.”
16. In the case of Olel vs Republic [1989] KLR 444, it was held that: -
"where a plea is unequivocal, an appeal against conviction does not lie. Section 348 of the Criminal Procedure Code (Cap 75) does not merely limit the right of appeal in such cases but bars it completely.”
17. In Alexander Lukoye Malika vs. Republic [2015] eKLR the Court of Appeal identified the situations in which a conviction based on a plea of guilty can be interfered with as follows:
“A court may only interfere with a situation where an accused person has pleaded guilty to a charge where the plea is imperfect, ambiguous or unfinished such that the trial court erred in treating it as a plea of guilty. Another situation is where an accused person pleaded guilty as a result of mistake or misapprehension of the facts. An appellate court may also interfere where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to law. Also, where upon admitted facts the Appellant could not in law have been convicted of the offence charged.”
18. Section 207 of the Criminal Procedure Code provides as follows on the process of Plea taking;
(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 court 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.
(3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided.
(4) If the accused person refuses to plead, the court shall order a plea of "not guilty" to be entered for him.
(5) If the accused pleads—
(a) that he has been previously convicted or acquitted on the same facts of the same offence; or
(b) that he has obtained the President’s pardon for his offence, the court shall first try whether the plea is true or not, and if the court holds that the evidence adduced in support of the plea does not sustain it, or if it finds that the plea is false, the accused shall be required to plead to the charge.
19. In the celebrated case of Adan vs Republic [1973] EA 445, the Court expressed itself on what an unequivocal plea of guilty amounts to. It is where in a plea of guilty; -
1. The charge and all the essential ingredients of the offence are explained to the accused in his language or in a language he understands;
2. Where the accused’s own words in response to the charge are recorded and amount to admission, leading to a recording of a plea of guilty.
3. The facts are stated by the Prosecutor and the accused is 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 is recorded and change of plea entered;
5. If there is no change of plea a conviction is recorded and a statement of the facts relevant to sentence together with the accused’s reply are recorded.
20. In K N vs. Republic [2016] eKLR, it was held that:
“The procedure for taking plea follows a well-beaten path. The leading case, Adan v R (1973) EA 445 emphasises that an accused person must not only understand the language used at his trial but also appreciate all the essential ingredients of the offence charged before his plea can be taken to be unequivocal. This need for taking the greatest care where the accused admits the offence was explained many years before the decision in Adan (supra) in Hando S/o Akunaay v Rex (1951) 18 EACA 307 as follows;
‘…before convicting on any such plea, it is highly desirable not only that every constituent of the charge should be explained to the accused, but that he should be required to admit or deny every such constituent.’
Where an accused person who has been called upon to plead under section 207 of the Criminal Procedure Code in the subordinate court admits the charge, the proviso to subsection (2) requires the prosecution to outline the facts upon which the charge is founded. The truth or otherwise of the charge is a combination of three things, the charge, the particulars of the offence contained in the charge sheet or information, as the case may be, as well as the facts outlined where the accused pleads guilty. The facts therefore are as important part of a plea as the charge itself. The nature and elements of the offence in totality must be understood by the accused and the trial court must be satisfied about this before accepting them as true. We think the court should also explain to the accused person the natural consequence of pleading guilty, the conviction and likely sentence. In outlining the facts the prosecution’s role is to present the evidence that could have been proven if the case had gone to trial. Therefore for the court to accept a plea of guilty, the facts alleged by the prosecution must be accepted by the accused as accurate and they must, in turn be sufficient in law to constitute and disclose the offence charged, the proof of which must be beyond any reasonable doubt. It is therefore incumbent upon the prosecution, in proof of the charge, to present the exhibits that they would have relied on at the trial.”
21. The Prosecution in this case has conceded to the Appellant’s assertion that the fact of the case was not read out to the Appellant as is required as demonstrated by the Statutory provisions and Case law herein cited. She submitted that the Prosecution simply stated that the “Facts are as per the Charge Sheet” after which the Learned Trial Magistrate entered a conviction and proceeded to sentence the Appellant. This being the case, the court need not go into much ado about all the other issues raised in light of the fact that by the Prosecutions own admission, the plea was equivocal. The court therefore finds that the plea of guilty entered by the Learned Trial Magistrate as pleaded by the Appellant was indeed unequivocal and the same is now hereby set aside and the sentence of 5 years imposed upon the Appellant quashed.
22. The only issue left for the court to determine then is whether the court should order for a re-trial. The Court of Appeal in the case of Ahmed Sumar vs. R (1964) EALR 483 offered the following guidance:
“...in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; ......”
23. Further, in Muiruri Vs R [2003] KLR 552, this Court held as follows:
“retrial 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 Zedekiah Ojuondo Manyala Vs 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.”
24. From my finding above it is clear that the reasons for which the court as set aside the plea as taken before the Trial Court has herein stated fall squarely within the ambits of a defect and/or illegality in the original trial. For this reason, a re-trial is the appropriate recourse in ensuring that the ultimate ends of justice are met in this case. This matter is therefore remitted back to the Senior Principal Magistrate’s Court at Iten for a re-trial which is to be conducted by any other Magistrate other that the Hon V. Karanja, PM and it is now herby so ordered. Right of Appeal 14 days. The matter is to be mentioned before the Senior Principal Magistrate Iten on 16th July 2025 for the taking of a fresh plea.
Read Dated and Signed at ELDORET on 2nd July 2025
JUDGEMENT
1. The Appellant was charged with the offence of Conspiracy to Defeat Justice and interference with witnesses contrary to Section 117 of the Penal Code. The particulars of the offence were that on the 8th day of August at Iten Law Courts, Kapchemutwa location in Elgeyo Marakwet County, while posing before court as the complainant’s father and mother respectively, he wilfully and unlawfully conspired with the accused person charged with the offence of defilement before court, to deny the complainant justice, by telling the honourable court of law to acquit the accused since they had settled the defilement case out of the court.
2. The Appellant pleaded guilty to the offence and the facts of the offence were read out, as per the charge sheet, in open court. The Appellant confirmed that the facts were true and the trial court proceeded to convict the Appellant and his co-accused. They were offered an opportunity for mitigation and upon considering the same, the trial magistrate sentenced the appellant to five years’ imprisonment.
3. Dissatisfied with the conviction and sentence, the Appellant instituted the present appeal vide a Petition of Appeal filed on 04/09/2024. The grounds of appeal are as follows, verbatim;
1) That (I) am challenging the plea of guilty entered on trial proceedings on the basis that it was equivocal as the statement of facts version was not exactly the position (I) was pleading to. (I) am relying on the authority of Adan v Republic (1973) EA 446 which held that the particulars of the offence on the charge sheet and the facts read out by prosecutor did not reveal an offence, that is, agreeing to settle the attempted defilement involving (my) son out of court with courts permission.
2) That the facts that were read out to (me) were not entirely accurate on the reason that what the father to the complainants did by asking the court if it would permit the settlement of the case out of court process does not amount to an offence, it does not also become a conspiracy when he expressed his desires to the court therefore it did not reveal an offence under the law. (I) am relying on the Authority of Obedi Kilonzo v Republic (2015) which held that facts presented in court must disclose the offence as the witnesses did not testify.
3) That the alleged event in court by complainant's father does not reveal (my) exact role in the alleged offence. In addition, (I) was not present in court when he addressed the court on the matter and was arrested four days after the incident. This was a mistrial and a miscarriage of justice as (l) could not have conspired in absentia.
4) That the trial erred in law and fact by committing a procedural impropriety in not offering an opportunity to the appellant to offer mitigation statement before his sentencing and was asked after his sentencing what he had to say after getting a maximum sentence prescribed, violating his right under Article 25 of the Constitution of Kenya This omission denied (me) a benefit of a shorter, appropriate sentence in compliance to Article 50 (2) (p) of Constitution.
5) That the trial magistrate erred in law and fact by imposing a harsh & excessive sentence in the circumstance of the case, in this instant the 5 years is the maximum under that provision (I) was sentenced under.
6) That, the trial magistrate erred in law and fact by charging me with a charge which is defective on the basis of duplicity where (I) was charged for conspiracy to defeat justice and interference with witnesses which are three (3) distinct offences under Section 117 of the Penal Code. This created ambiguity as to what the was sentenced on the imposed 5 years.
Hearing of the appeal
4. The appeal was canvassed by way of written submissions. The appellant filed submissions on 28/04/2025 whereas the Respondent filed submissions on 27/02/2025 through Prosecution Counsel Rachel Mwangi.
Appellants’ Submissions
5. The appellant submitted that his plea was equivocal and further, that the outline of facts which founded the charge he was facing were not accurate, therefore, the plea of guilty was equivocal. He stated that by extension the conviction was not proper and safe. He further submitted that the particulars of the offence on the charge sheet and the facts that were read out by the prosecutor in this instant, agreeing to settle the attempted defilement involving his son out of court with courts permission. That the facts were not sufficiently particularized to make it possible for the appellant to understand the charge he was answering to which was made worse by the charge being duplex. This violated the principle of prosecution where the prosecution failed to present accurate information of the offence as it is a requirement for the accused to know of what is alleged against him.
6. The appellant stated that the court did not warn him of the consequences of pleading guilty and he was not given a chance to add relevant facts in the case. Further, that in general the rules of recording plea of guilty did not conform to Section 207 of Criminal Procedure Code or the rules held in Adan v Republic (1973) EA 446. The Appellant submitted that the court should find the charge to be defective, that the plea was not equivocal and allow the appeal.
7. The appellant submitted that the co-accused acted alone in seeking permission from the court to settle the pending attempted defilement case involving their children. That it did not amount to conspiracy as one person cannot commit conspiracy. He cited Section 176 of the Criminal Procedure Code, urging that it in fact requires the court to offer facilitation for reconciliation for disputing parties in a case. That the trial magistrate took offence for being asked permission and misdirected herself that that act amounted to a conspiracy and interference with witnesses.
8. The appellant submitted that the sentence of 5 years was very harsh and excessive in consideration that it was the maximum available sentence. He cited Article 50 (2)(p) of Constitution of Kenya, urging that it makes it a constitutional right for the appellant to receive the least severe sentence available in the circumstances of his case. It is on this account that the appellant invited this court to consider it as a good ground to interfere with the discretion of the sentencing court. He urged that it was a deliberate act not to be offered an opportunity to mitigate before sentencing, but that he was asked in passing if he had anything to say after being sentenced. He placed reliance on the case of Shadrack Kipkoech Kogo vs Republic – Eldoret Criminal Appeal No. 253 of 2013.
9. He reiterated that the charge sheet was defective as the charge was duplicitous. That under Section 117 of the Penal Code there are three other distinct offences and the same was not specified. He stated that the error of charging him with a duplex charge is not curable under Section 382 of the Criminal Procedure Code as the offences have different penalties under the law and the ingredients are also different. The duplicitous nature of his case made the whole trial proceeding null and void which amounts to a mistrial. He urged the court to allow the appeal in this ground.
Respondents’ case
10. Prosecution counsel conceded the appeal on the ground that the plea was equivocal. She cited the provisions of Section 207(2) of the Criminal Procedure Code in this regard and submitted that the appellant pleaded guilty to the offence as charged but the prosecution did not read the facts to the appellant as required by law. That the prosecution counsel only stated that the facts were as per the charge sheet. She further submitted that Section 207(2) of the Criminal Procedure Code requires that the prosecution outlines a summary of the facts for the accused person to admit or dispute the facts. Counsel cited the case of Benard Saidimu & 4 others v Republic [2019] eKLR and stated that merely stating that facts are as per the charge sheet does not meet the legal threshold for taking an unequivocal plea.
11. The Respondent stated that the trial was however not defective and urged that it is in the interest of justice that this court be pleased to order a retrial, placing reliance on the case of Makupe v Republic (1989) eKLR in which the court held that in general, a retrial will be ordered when the original trial was illegal or defective, it will not be ordered where the convictions is set aside because of the insufficiency of the evidence or to enable the prosecution to fill up gaps in the evidence at the first trial, even where a conviction is vitiated by a mistake of the trial court for which the prosecution to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for a retrial should only be made where the interests of justice require it and it should not be ordered where it is likely to cause an injustice to the appellant or accused.
12. Counsel urged the court to set aside the conviction and sentence and order a retrial.
Analysis & Determination
13. Having considered the Application and the submissions, it is my considered opinion that the following issue arises for determination;
Whether the accused plea of guilt was unequivocal
14. Section 364 (1) of the Criminal Procedure Code provides:
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.
15. Section 348 of the Criminal Procedure Code provides as follows on appeals against conviction on a plea of guilty
"No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate Court, except as to the extent and legality of the sentence.”
16. In the case of Olel vs Republic [1989] KLR 444, it was held that: -
"where a plea is unequivocal, an appeal against conviction does not lie. Section 348 of the Criminal Procedure Code (Cap 75) does not merely limit the right of appeal in such cases but bars it completely.”
17. In Alexander Lukoye Malika vs. Republic [2015] eKLR the Court of Appeal identified the situations in which a conviction based on a plea of guilty can be interfered with as follows:
“A court may only interfere with a situation where an accused person has pleaded guilty to a charge where the plea is imperfect, ambiguous or unfinished such that the trial court erred in treating it as a plea of guilty. Another situation is where an accused person pleaded guilty as a result of mistake or misapprehension of the facts. An appellate court may also interfere where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to law. Also, where upon admitted facts the Appellant could not in law have been convicted of the offence charged.”
18. Section 207 of the Criminal Procedure Code provides as follows on the process of Plea taking;
(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 court 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.
(3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided.
(4) If the accused person refuses to plead, the court shall order a plea of "not guilty" to be entered for him.
(5) If the accused pleads—
(a) that he has been previously convicted or acquitted on the same facts of the same offence; or
(b) that he has obtained the President’s pardon for his offence, the court shall first try whether the plea is true or not, and if the court holds that the evidence adduced in support of the plea does not sustain it, or if it finds that the plea is false, the accused shall be required to plead to the charge.
19. In the celebrated case of Adan vs Republic [1973] EA 445, the Court expressed itself on what an unequivocal plea of guilty amounts to. It is where in a plea of guilty; -
1. The charge and all the essential ingredients of the offence are explained to the accused in his language or in a language he understands;
2. Where the accused’s own words in response to the charge are recorded and amount to admission, leading to a recording of a plea of guilty.
3. The facts are stated by the Prosecutor and the accused is 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 is recorded and change of plea entered;
5. If there is no change of plea a conviction is recorded and a statement of the facts relevant to sentence together with the accused’s reply are recorded.
20. In K N vs. Republic [2016] eKLR, it was held that:
“The procedure for taking plea follows a well-beaten path. The leading case, Adan v R (1973) EA 445 emphasises that an accused person must not only understand the language used at his trial but also appreciate all the essential ingredients of the offence charged before his plea can be taken to be unequivocal. This need for taking the greatest care where the accused admits the offence was explained many years before the decision in Adan (supra) in Hando S/o Akunaay v Rex (1951) 18 EACA 307 as follows;
‘…before convicting on any such plea, it is highly desirable not only that every constituent of the charge should be explained to the accused, but that he should be required to admit or deny every such constituent.’
Where an accused person who has been called upon to plead under section 207 of the Criminal Procedure Code in the subordinate court admits the charge, the proviso to subsection (2) requires the prosecution to outline the facts upon which the charge is founded. The truth or otherwise of the charge is a combination of three things, the charge, the particulars of the offence contained in the charge sheet or information, as the case may be, as well as the facts outlined where the accused pleads guilty. The facts therefore are as important part of a plea as the charge itself. The nature and elements of the offence in totality must be understood by the accused and the trial court must be satisfied about this before accepting them as true. We think the court should also explain to the accused person the natural consequence of pleading guilty, the conviction and likely sentence. In outlining the facts the prosecution’s role is to present the evidence that could have been proven if the case had gone to trial. Therefore for the court to accept a plea of guilty, the facts alleged by the prosecution must be accepted by the accused as accurate and they must, in turn be sufficient in law to constitute and disclose the offence charged, the proof of which must be beyond any reasonable doubt. It is therefore incumbent upon the prosecution, in proof of the charge, to present the exhibits that they would have relied on at the trial.”
21. The Prosecution in this case has conceded to the Appellant’s assertion that the fact of the case was not read out to the Appellant as is required as demonstrated by the Statutory provisions and Case law herein cited. She submitted that the Prosecution simply stated that the “Facts are as per the Charge Sheet” after which the Learned Trial Magistrate entered a conviction and proceeded to sentence the Appellant. This being the case, the court need not go into much ado about all the other issues raised in light of the fact that by the Prosecutions own admission, the plea was equivocal. The court therefore finds that the plea of guilty entered by the Learned Trial Magistrate as pleaded by the Appellant was indeed unequivocal and the same is now hereby set aside and the sentence of 5 years imposed upon the Appellant quashed.
22. The only issue left for the court to determine then is whether the court should order for a re-trial. The Court of Appeal in the case of Ahmed Sumar vs. R (1964) EALR 483 offered the following guidance:
“...in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; ......”
23. Further, in Muiruri Vs R [2003] KLR 552, this Court held as follows:
“retrial 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 Zedekiah Ojuondo Manyala Vs 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.”
24. From my finding above it is clear that the reasons for which the court as set aside the plea as taken before the Trial Court has herein stated fall squarely within the ambits of a defect and/or illegality in the original trial. For this reason, a re-trial is the appropriate recourse in ensuring that the ultimate ends of justice are met in this case. This matter is therefore remitted back to the Senior Principal Magistrate’s Court at Iten for a re-trial which is to be conducted by any other Magistrate other that the Hon V. Karanja, PM and it is now herby so ordered. Right of Appeal 14 days. The matter is to be mentioned before the Senior Principal Magistrate Iten on 16th July 2025 for the taking of a fresh plea.
Read Dated and Signed at ELDORET on 2nd July 2025