' (Being an appeal from the Conviction & Sentence at the Chief Magistrate’s Court in Keroka MCCR Case No. E476 of 2024 delivered by Hon. C. Ombija, Senior Resident Magistrate on 5 th July 2024)
The appellant herein, Irene Munga , was convicted on her own plea of guilty, for the offence of Obtaining by false pretence contrary to Section 313 of the Penal Code. The particulars of the charge were that on diverse dates between 9 th March 2024 and 26 th June 2024 in Borabu Sub-County within Nyamira County jointly with another not before court obtained Kshs. 243,520/= from Gabriel Maronga by falsely pretending that she was in a position to take his daughter Damackline Kwamboka to the USA, a fact she knew to be false.
The Appellant was, upon conviction, sentenced to pay a fine of Kshs. 300,000/= or in default to serve 5 years’ imprisonment.
Dissatisfied with both the conviction and sentence, the Appellant filed the instant appeal and listed the following grounds of appeal in the Petition of Appeal: -
That the trial court violated the Appellant’s right to a fair trial as he did not follow the right procedure for plea taking.
That the trial court erred in law and fact by failing to ensure that the Appellant was afforded the right to legal representation contrary to Article 50 (2) (g) and (h) of the Constitution.
The Appeal was canvassed by way of written submissions which I have considered. The Respondent conceded to the appeal. The Respondent’s concession notwithstanding, this court is still under a duty to re-analyse and re-evaluate the evidence presented before the trial court afresh with a view to arriving at its own independent findings while bearing in mind the fact that it neither saw nor heard the witnesses testify, (See Odhiambo vs. Republic Cr. App No. 280 of 2004 (2005) 1 KLR).
In the present case, witnesses did not testify before the trial court as the Appellant pleaded guilty to the offence. This court will therefore only consider if the plea taking process was properly conducted conducted in accordance with the legal requirements.
Analysis and Determination
It is trite that where an accused person is convicted on his own plea of guilty, an appeal can only lie against the sentence imposed by the trial court and not against conviction, unless it is shown that the plea was not unequivocal. Section 348 of the Criminal Procedure Code stipulates as follows: -
348. 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 or legality of the sentence.
in Olel vs. Republic [1989] KLR 444 the court considered the provisions of Section 348 of the Criminal Procedure Code and expressed itself thus:-
“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.”
In the present case, the Appellant faulted the trial court for convicting her conviction on a plea which was not unequivocal. Section 207 of the Criminal Procedure Code enumerates the steps that a trial court should take when recording plea as follows: -
207. Accused to be called upon to plead
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.
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.
If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided.
If the accused person refuses to plead, the court shall order a plea of "not guilty" to be entered for him.
If the accused pleads—
that he has been previously convicted or acquitted on the same facts of the same offence; or
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.
The steps under subsections (1) and (2) above were expounded by the Court of Appeal in Joseph Wambua Mbuvi vs. Republic [2019] eKLR which cited, with approval, the case of Adan vs. Republic [1973] 445 and held as follows: -
“When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilty, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence . The statement of facts and the accused''s reply must, of course, be recorded.”
In the present case, a perusal of the trial court’s proceedings reveals that the language that was used to read out and explain the charge to the Appellant is not specified as the record indicates that the translation was “ English/Kiswahili/Ekegussi.” I find that the learned trial magistrate did not comply with the guidelines for taking and recording of a plea of guilty as set out under Section 207 of the Criminal Procedure Code.
I further note that the trial court did not pay attention to the fact that the Appellant was not represented by a legal counsel and failed to ensure that she understood the charges and the consequences of a guilty plea. My view is that it was incumbent upon the trial court to ensure that the Appellant not only understood the charges that she was facing but that she also appreciated the consequences of pleading guilty to the charge.
In view of the foregoing, I find that the guilty plea was not unequivocal owing trial court’s failure to set out the specific language that was used when the charge was read out to the Appellant and the fact that the Appellant was not warned of the consequences of a guilty plea.
In light of the above finding, I am satisfied that the instant appeal is merited and I hereby allow it by quashing the conviction and setting aside the sentence.
The next issue that I must consider is whether to acquit the appellant or order for a retrial. In Muiruri vs. Republic, [2003] KLR 522 and Mwangi vs. Republic, [1983] KLR 522 , the courts held that a retrial should be ordered only if doing so would be in the interest of justice taking into account, all the circumstances of the case, including the nature of the offence charged and the evidence on record.
In Francis Ndungu Wanjau vs. Republic [2011] eKLR, the Court of Appeal stated: -
“Whether or not there ought to be a retrial in any particular case is a matter for discretion of the court depending on the circumstances of the case”.
In the present case, I am persuaded that an order for a retrial will serve the interests of justice since the Prosecution did not get an opportunity to call witnesses owing to the guilty plea. In any event, the nature of the offence is not such that it would subject the complainants or victims to emotional trauma by having to relive the facts of the case.
Consequently, while the Appellant’s conviction is quashed and the sentence set aside, I direct that the case be remitted to the Magistrates Court at Keroka for a retrial to be conducted by by another magistrate other than Hon. Ombija. The appellant shall be presented before Keroka Law Courts to take plea afresh on 11 th November 2025.
It is so ordered.
'
The appellant herein, Irene Munga , was convicted on her own plea of guilty, for the offence of Obtaining by false pretence contrary to Section 313 of the Penal Code. The particulars of the charge were that on diverse dates between 9 th March 2024 and 26 th June 2024 in Borabu Sub-County within Nyamira County jointly with another not before court obtained Kshs. 243,520/= from Gabriel Maronga by falsely pretending that she was in a position to take his daughter Damackline Kwamboka to the USA, a fact she knew to be false.
The Appellant was, upon conviction, sentenced to pay a fine of Kshs. 300,000/= or in default to serve 5 years’ imprisonment.
Dissatisfied with both the conviction and sentence, the Appellant filed the instant appeal and listed the following grounds of appeal in the Petition of Appeal: -
That the trial court violated the Appellant’s right to a fair trial as he did not follow the right procedure for plea taking.
That the trial court erred in law and fact by failing to ensure that the Appellant was afforded the right to legal representation contrary to Article 50 (2) (g) and (h) of the Constitution.
The Appeal was canvassed by way of written submissions which I have considered. The Respondent conceded to the appeal. The Respondent’s concession notwithstanding, this court is still under a duty to re-analyse and re-evaluate the evidence presented before the trial court afresh with a view to arriving at its own independent findings while bearing in mind the fact that it neither saw nor heard the witnesses testify, (See Odhiambo vs. Republic Cr. App No. 280 of 2004 (2005) 1 KLR).
In the present case, witnesses did not testify before the trial court as the Appellant pleaded guilty to the offence. This court will therefore only consider if the plea taking process was properly conducted conducted in accordance with the legal requirements.
Analysis and Determination
It is trite that where an accused person is convicted on his own plea of guilty, an appeal can only lie against the sentence imposed by the trial court and not against conviction, unless it is shown that the plea was not unequivocal. Section 348 of the Criminal Procedure Code stipulates as follows: -
348. 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 or legality of the sentence.
in Olel vs. Republic [1989] KLR 444 the court considered the provisions of Section 348 of the Criminal Procedure Code and expressed itself thus:-
“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.”
In the present case, the Appellant faulted the trial court for convicting her conviction on a plea which was not unequivocal. Section 207 of the Criminal Procedure Code enumerates the steps that a trial court should take when recording plea as follows: -
207. Accused to be called upon to plead
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.
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.
If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided.
If the accused person refuses to plead, the court shall order a plea of "not guilty" to be entered for him.
If the accused pleads—
that he has been previously convicted or acquitted on the same facts of the same offence; or
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.
The steps under subsections (1) and (2) above were expounded by the Court of Appeal in Joseph Wambua Mbuvi vs. Republic [2019] eKLR which cited, with approval, the case of Adan vs. Republic [1973] 445 and held as follows: -
“When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilty, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence . The statement of facts and the accused''s reply must, of course, be recorded.”
In the present case, a perusal of the trial court’s proceedings reveals that the language that was used to read out and explain the charge to the Appellant is not specified as the record indicates that the translation was “ English/Kiswahili/Ekegussi.” I find that the learned trial magistrate did not comply with the guidelines for taking and recording of a plea of guilty as set out under Section 207 of the Criminal Procedure Code.
I further note that the trial court did not pay attention to the fact that the Appellant was not represented by a legal counsel and failed to ensure that she understood the charges and the consequences of a guilty plea. My view is that it was incumbent upon the trial court to ensure that the Appellant not only understood the charges that she was facing but that she also appreciated the consequences of pleading guilty to the charge.
In view of the foregoing, I find that the guilty plea was not unequivocal owing trial court’s failure to set out the specific language that was used when the charge was read out to the Appellant and the fact that the Appellant was not warned of the consequences of a guilty plea.
In light of the above finding, I am satisfied that the instant appeal is merited and I hereby allow it by quashing the conviction and setting aside the sentence.
The next issue that I must consider is whether to acquit the appellant or order for a retrial. In Muiruri vs. Republic, [2003] KLR 522 and Mwangi vs. Republic, [1983] KLR 522 , the courts held that a retrial should be ordered only if doing so would be in the interest of justice taking into account, all the circumstances of the case, including the nature of the offence charged and the evidence on record.
In Francis Ndungu Wanjau vs. Republic [2011] eKLR, the Court of Appeal stated: -
“Whether or not there ought to be a retrial in any particular case is a matter for discretion of the court depending on the circumstances of the case”.
In the present case, I am persuaded that an order for a retrial will serve the interests of justice since the Prosecution did not get an opportunity to call witnesses owing to the guilty plea. In any event, the nature of the offence is not such that it would subject the complainants or victims to emotional trauma by having to relive the facts of the case.
Consequently, while the Appellant’s conviction is quashed and the sentence set aside, I direct that the case be remitted to the Magistrates Court at Keroka for a retrial to be conducted by by another magistrate other than Hon. Ombija. The appellant shall be presented before Keroka Law Courts to take plea afresh on 11 th November 2025.
It is so ordered.
'