1. The Appellant James Bario was in the principal count charged before the trial court with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, Cap 63A Laws of Kenya (erstwhile Act No. 3 of 2006).
2. It was stated in the particulars of the offence that on diverse dates between 8th May, 2023 and 11th May, 2023 at Anjuki Location in Tigania Central Subcounty within Meru County, the Appellant intentionally and unlawfully caused his penis to penetrate the anus of BK (name withheld), a child aged 16 years.
3. In the alternative count, the Appellant was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, Cap 63A Laws of Kenya.
4. The particulars of the offence for the alternative charge were that on diverse dates between 8th May, 2023 and 11th May, 2023 at Anjuki Location in Tigania Central Subcounty within Meru County, the Appellant intentionally and unlawfully touched the anus of BK, a child aged 16 years old with his penis.
5. The trial court’s record bears it that the Appellant was presented before Hon. James Macharia, SPM on 15th May, 2023 for plea. The proceedings of that day are as follows:
15/5/2023
Before J. Macharia SPM
Pros: Marete
CC: Karen.
Accused Present.
Court:
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 admits or denies the truth of the charge(s) replies as follows in Swahili:
Main charge: It’s true.
Court: Plea of guilty entered.
Court: Accused warned thrice that the offence is serious and calls for severe punishment and accused still opts to plead guilty.
J. MACHARIA
SPM
6. As is instructive from the trial court’s file, the learned trial Magistrate went on to record the facts, which appear under the title “Facts”. The same appear as follows:
FACTS
On 8th May, 2023 at around 8am, the complainant BK was in his father’s house together with the accused who had slept there.
The accused told the complainant that they go to his house so that he would give him some food.
They went to accused’s house which is one room. The accused told the complainant to remove his clothes and he started to beat him warning him.
He locked him and he left. He left and returned at night.
The complainant spent the night at the said room and the suspect slept in adjacent room. The next day at around 9 in the morning the suspect went to work and locked the complainant and returned at night at 9pm.
He ordered the complainant to remove his clothes and forcefully defiled the said minor and threatened to kill him if he made any noise.
The following morning the accused left as usual.
The complainant heard a voice from one person called Mureithi a person he knew and called him and gave him a phone number to call the complainant’s father to inform him that he had been locked in accused’s house.
The accused returned as usual and defiled the minor the second time through the anus.
The area chief received information from the public and heard that the complainant had been locked in the accused’s house.
He laid an ambush with other nyumba kumi and ambushed the accused on his way home and escorted him to his house and ordered him to open the door which had been locked from outside. With the help of police officers from Mikinduri Police Station, they found the complainant naked on the accused’s bed and he narrated to them what had transpired and his ordeal in the hands of the accused.
Upon search they recovered 8 pieces of Arimis milking jelly 50ml. 2 x 250ml Vaseline jelly, 1 body lotion, 2 clubs and one blanket.
The accused and the complainant were escorted to the police station and the complainant was issued with a P3 form. He was taken to the hospital and the complainant was examined and P3 form was filled exhibit 1, treatment notes exhibit 2, lab test exhibit 3, PRC exhibit 4, age assessment exhibit 5.
The complainant’s age was confirmed to be 16 years and the P# form confirmed there was anal penetration. The accused was charged before this court.
That is all.
7. Although the lower court record does not bear the name of the person or officer who presented the above facts, it indicates that the Appellant on being asked whether the facts were correct, responded that the same were correct and added to his response the words; “I committed the offence as read to me”.
8. With that, the Appellant was convicted on the principal charge. Following presentations by the learned Prosecution Counsel in conduct of the matter and the Appellant’s mitigation, the learned trial Magistrate sentenced the Appellant to serve 30 years imprisonment.
9. The present appeal is against both conviction on the basis of the plea of guilty and the sentence of 30 years. The ground of appeal proffered by the Appellant, as discernible from his Petition of Appeal and submissions, present the following issues for determination:
a. Whether or not the plea of guilty was unequivocal and the subsequent conviction safe.
b. Whether or not the sentence imposed by the trial court was unlawful, harsh and excessive.
10. With regard to the first issue (whereby the Appellant urges that the plea of guilty was not unequivocal and the conviction unsafe), the first point that the Appellant submitted was that the record of the trial court does not state the language that was used to read and explain the charge to the Appellant and that there is no indication on whether the trial court inquired from the Appellant what language he understood or whether an inquiry was made to assist the court in determining the language the accused person understood, so that the appropriate language would be used to read and explain the charges to him.
11. The second point that the Appellant presented on the conviction that was based on the plea of guilty is that his mental state was not ascertained before the plea was taken and that the trial court erred thus.
12. With regard to the sentence, the Appellant presented two grounds, the first one being that the sentence of imprisonment for 30 years was harsh and excessive.
13. The second ground that the Appellant proffered on the sentence was that the sentence imposed by the trial court was based on the wrong age of the victim and therefore fell afoul of the law. He stated that the Appellant was charged under Section 8(3) of Cap 63A, which covers a scenario where the age of a survivor of the offence of defilement is between 12 and 15 years old, instead of Section 8(4) of Cap 63A which relates to a survivor who is between the age of 16 and 18 years old.
14. I will first address the issue raised by the Appellants that the plea of guilty the principal charge was not unequivocal. I note that when the plea was taken, the Appellant was not represented.
15. The Appellant complained that the record of the trial court does not state the language that was used to read and explain the charge to the Appellant and that there is no indication on whether the trial court inquired from the Appellant what language he understood.
16. In a criminal trial, it is imperative for the court to read and explain to an accused person the substance of a charge and every element of the charge in a language that he understands before asking him to plead to it. That then means that the court must first take the motion to inquire and ascertain the language that an accused person understands.
17. The relevant legal provision to that end is Section 198(1) of the Criminal Procedure Code, Cap 75 Laws of Kenya which provides as follows:
"Whenever any evidence is given in a language not understood by the accused, and he is present in person, it should be interpreted to him in open Court in a language which he understands."
18. It is also critical that the proceedings that are taken, including the testimonies of witnesses be interpreted to the language that the accused person understands, as dictated by the above provision of statute. Language, in a criminal trial, is an essential part of an accused person’s right to a fair trial as it ensures that he properly understands the case against him. The language of the court and the language of an accused person must therefore be indicated in the court’s record.
19. I have above reproduced the proceedings of the trial court of 15th May, 2023, being the date that the Appellant took plea and there cannot be a doubt that the language of the court was not stated in the coram. The proceedings also indicate that the substance of the charge and every element thereof was stated to the Appellant in the language that he understood, but that language is not indicated, although the record states that he responded in Swahili.
20. It is also not clear how the court determined the language that the Appellant understood as there is nothing to show that the Appellant was asked or informed the court the language that he understood.
21. While dealing with the right of an accused person to interpretation the Court of Appeal observed as follows in the case of Jason Akhonya Makokha v R [2014] eKLR:
“The cardinal principles that we can draw from the above case law propositions are that, one, any court of law taking a plea from an accused person has to ensure that the language of the court and the language the accused person wishes to use to communicate with the court is indicated on the record and where an accused person is not conversant with the language of the court, he should be afforded the services of an interpreter………”.
(Underlined emphasis mine).
22. In the case of Jackson Leskei v R [2006] eKLR, it was held that it is the court’s duty to ensure that the accused’s right to interpretation is safeguarded and that the court must demonstratively show its protection.
23. The above decisions provide the jurisprudence that the plea and trial courts are under a duty to ensure that an accused person right to interpretation is protected during a criminal trial and that where the language of the court and the language that an accused person understands are not indicated on record, the veracity of the plea and/or the trial are vitiated as that amounts to a violation of his right to a fair trial.
24. Still on the equivocality of the Appellant’s plea, I note from the record of the trial court that the learned trial Magistrate recorded that he warned the Appellant thrice that the offence in the principal charge was serious and called for severe punishment but the Appellant still opted to plead guilty.
25. The learned trial Magistrate did not however inform the Appellant what “severe punishment” amounted to as the exact sentence that the law provided was not spelt out to the Appellant, as would have been ideal.
It is apparent that after the trial court cautioned or warned the Appellant thrice of the severity of the sentence, the plea was not taken afresh. My view is that a fresh plea ought to have been taken after the caution to the Appellant, whereby the court would then have required him to respond afresh after being cautioned on the severity and exact nature of the sentence. My persuasion is that failure to read and explain the charge to the accused after the warning rendered the plea equivocal.
26. Perhaps the decision of Paulo Malimi Mbusi v R Kiambu Crim App No 8 of 2016 (UR) presents the ideal route that a court should take when an accused person pleads guilty. The court held as follows:
“Where an unrepresented accused person pleads guilty to a serious charge which is likely to attract custodial sentence, the obligation of the court to ensure that the accused person understands the consequences of such a plea is heightened. Here, the court took no extra effort to ensure this. In these circumstances, given the seriousness of the charge the court was about to convict and sentence the accused person for, it behooved the court to warn the accused person of the consequences of a guilty plea.”
27. The above passage is self-explanatory.
28. The other ground which the Appellant presented on the equivocality of the plea is that his mental state was not ascertained before the plea was taken. On that ground, the law on soundness or otherwise of mind is contained in Sections 11 of the Penal Code which provides that:
“11. Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.”
29. It is not in dispute that the Appellant was not subjected to a mental examination to ascertain his capacity to stand trial. Did that vitiate his plea?
30. To answer that question, I will take guidance from the persuasive decision of Ngugi, J (as he then was) in Simon Gitau Kinene v Republic [2016] eKLR where the court held as follows when presented with a similar issue”
“I should begin by pointing out that the trial court record does not have any indication that there was an attempt to bring to its attention the suspicion that the Appellant was mentally ill. It also does not have any indication that the Appellant behaved in any way that would have alerted the trial court that the Appellant was anything than mentally sound. Indeed, his mitigation would seem to suggest an ability to logically communicate in a way which would not raise any concern in the mind of the trial court as to his mental status.
I have raised the issue of the trial court record because Section 11 of the Penal Code and Section 162 (1) and (2) of the Criminal Procedure Code are important here. Section 11 provides as follows:
Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.
On the other hand, Section 162 reads as follows:
162.(1) When in the course of a trial or committal proceedings the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness.
(2) If the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, it shall postpone further proceedings in the case.
The law is that every accused person is presumed to be of sound mind under Section 11 of the Penal Code. The burden is on the Accused Person to rebut this presumption. However, the Court is obligated under Section 162 to take action – for example by ordering a mental assessment – where it comes to the attention of the court that the Accused Person may be of unsound mind.
In this case, the trial court cannot be faulted for proceeding as it did in the circumstances. There was simply no material brought to the attention of the trial court to suggest that the Appellant was of unsound mind to warrant further inquiry by the court. In the circumstances, I find this ground of appeal unavailing to the Appellant.”
31. The findings in the above decision perfectly fit into the present appeal. At the time of taking plea, the Appellant was under Section 11 of the Penal Code presumed to be of sound mind and there is nothing in the record of the trial court that warranted the learned trial Magistrate to make an inquiry into the soundness of the Appellant’s mind at the time. This ground therefore fails.
32. With respect to the appeal on sentence, it is important for me to state that the circumstances under which an appellate court will interfere with the sentence of a trial court are limited.
33. The case that guides me in this regard is S. vs Malgas 2001 (1) SACR 469 (SCA in which the court observed as follows:
“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court….
However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking” “startling” or “disturbingly inappropriate” similarly in Mokela vs The State (135/11) [2011] ZASCA 166, the Supreme Court of South Africa held that:
“It is well established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served.”
34. On the same issue, in the case of Ogolla s/o Owuor vs Republic [1954] EACA 270 the East Africa Court of Appeal stated as follows:
“The court does not alter a sentence unless the trial judge has acted upon wrong principles or overlooked some material factors.”
35. There is also the Court of Appeal case of Benard Kimani Gacheru v R [2002] eKLR in which it was held that:
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence, unless that sentence is manifestly excessive in the circumstances of the case or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
36. Looking at the record of the trial court, it indeed is true that the Appellant was charged under Section 8(3) of Cap 63A, which covers a scenario where the age of a survivor of the offence of defilement is between 12 and 15 years old. The said Section provides for a sentence of imprisonment, upon conviction for a term of not less than twenty years.
37. But then, the evidence that was placed before the trial court was that the survivor was 16 years old. That then means that the sentence that should have been applicable is that provided for under Section 8(4) of Cap 63A, which is imprisonment, upon conviction to imprisonment for a term of not less than fifteen years.
38. Considering that what the law provides for under both under both Sections 8(3) and 8(4) are the minimum sentences, which means that a sentencing court can impose higher sentences under both provisions, I cannot say that the sentence by the trial court was unlawful, harsh or excessive as the court underscored the fact that the survivor was would be traumatized for life and the need to protect society.
39. For the foregoing reasons, I reach the result that the Appellant’s plea before the trial court was not unequivocal and that his subsequent conviction was not safe. I quash the trial court’s conviction and set aside the sentence of 20 years.
40. This court is now required to determine whether a retrial should be ordered or an acquittal.
41. In the case of Nicholas Kipngetich Mutai v Republic [2020] eKLR the Court held that a retrial should be ordered only where the interest of justice so requires.
42. Considering the seriousness of the offences that the Appellant was charged with, and further taking into account that the survivor was a 16-year-old minor, it is my persuasion that the interests of justice will be best served if a retrial is held.
43. To that end, I order that the Appellant be presented before Tigania Senior Principal Magistrate’s Court on 10th February, 2025 for retrial, before a court presided over by a Magistrate other than Hon. James Macharia, SPM.
44. In the intervening period, he will be handed over by the Kenya Prison Authorities to Mikinduri Police Station, where he will be remanded awaiting his presentation before Tigania Senior Principal Magistrate’s Court.
DELIVERED (virtually), DATED & SIGNED this 6th day of February, 2025.
JOE M. OMIDO
JUDGE
Appellant: Present, virtually.
Prosecution Counsel: Ms. Kimunya.
Court Assistant: Mr. Ngoge & Mr. Juma.