(ARISING FROM MCM CR NO 636 OF 2025)
1. The Applicant was charged with the offence of Abduction with intent to confine contrary to Section 256 of the penal code.
2. The particulars are JOSEPH KARANJA MATHENGE on the 25th day of April, 2025 at Obama round about area in Changamwe Sub-County within Mombasa County, unlawfully seized and carried away NO. 105080 PC (W) GRACE MUTUKU detaining her against her will inside a motor vehicle registration number KDG 305B make Toyota Hiace.
3. He pleaded guilty and was sentenced to 3 years imprisonment. He then filed this revision in which he says that he did not intend to abduct the officer. That he was new in Mombasa and not familiar with the roads. That when he pleaded guilty he was confused and he had been promised or advised that it was a petty traffic offence for which he would be fined.
4. I called for the lower court file and I have looked at the proceedings. In his mitigation he stated:
“There was a confusion I did not intend to commit it. I have a sick child. I had no bad intention”
5. For any offence we must have both the mens rea on the actus Then for a plea of guilty to be recorded the plea must be unequivocal.
6. In this case, the Applicant told the court that he did not intend: and he had no bad intent. That means he negated the mens rea. Mr. Ngiri for the Respondent pointed out that the Application was not clear if it was seeking a sentence review or that the plea be taken afresh.
7. Indeed from the face of the document it is not very clear. I note the Applicant is not represented. I find that there was an error apparent on the record as the plea was not unequivocal.
8. Considering the circumstances herein , the only option would be to declare the proceedings a nullity send the file back for a re trial .
9. I note that the Applicant has been in custody for about 2 months.
10. I therefore declare the proceedings a nullity and send the file back for plea taking before the Chief magistrate in court 1.
11. The Hon. Chief magistrate to consider the time spent in custody if the applicant pleads guilty.
12. THE APPLICANT BE TAKEN BEFORE THE CHIEF MAGISTRATE ON 1ST JULY 2025 FOR PLEA TAKING AFRESH.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this …26th …day of ..June.. 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
BEBORA COURT ASSISTANT
MR SIRIMA FOR THE RESPONDENT
APPLICANT IN PERSON
HON. LADY JUSTICE W. K. MICHENI
JUDGE
1. The Applicant was charged with the offence of Abduction with intent to confine contrary to Section 256 of the penal code.
2. The particulars are JOSEPH KARANJA MATHENGE on the 25th day of April, 2025 at Obama round about area in Changamwe Sub-County within Mombasa County, unlawfully seized and carried away NO. 105080 PC (W) GRACE MUTUKU detaining her against her will inside a motor vehicle registration number KDG 305B make Toyota Hiace.
3. He pleaded guilty and was sentenced to 3 years imprisonment. He then filed this revision in which he says that he did not intend to abduct the officer. That he was new in Mombasa and not familiar with the roads. That when he pleaded guilty he was confused and he had been promised or advised that it was a petty traffic offence for which he would be fined.
4. I called for the lower court file and I have looked at the proceedings. In his mitigation he stated:
“There was a confusion I did not intend to commit it. I have a sick child. I had no bad intention”
5. For any offence we must have both the mens rea on the actus Then for a plea of guilty to be recorded the plea must be unequivocal.
6. In this case, the Applicant told the court that he did not intend: and he had no bad intent. That means he negated the mens rea. Mr. Ngiri for the Respondent pointed out that the Application was not clear if it was seeking a sentence review or that the plea be taken afresh.
7. Indeed from the face of the document it is not very clear. I note the Applicant is not represented. I find that there was an error apparent on the record as the plea was not unequivocal.
8. Considering the circumstances herein , the only option would be to declare the proceedings a nullity send the file back for a re trial .
9. I note that the Applicant has been in custody for about 2 months.
10. I therefore declare the proceedings a nullity and send the file back for plea taking before the Chief magistrate in court 1.
11. The Hon. Chief magistrate to consider the time spent in custody if the applicant pleads guilty.
12. THE APPLICANT BE TAKEN BEFORE THE CHIEF MAGISTRATE ON 1ST JULY 2025 FOR PLEA TAKING AFRESH.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this …26th …day of ..June.. 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
BEBORA COURT ASSISTANT
MR SIRIMA FOR THE RESPONDENT
APPLICANT IN PERSON
HON. LADY JUSTICE W. K. MICHENI
JUDGE