(Being an Appeal against the conviction and sentence of Hon. H. Onkwani, SPM, delivered on 20th June, 2022 in Chief Magistrate’s Court at Makadara, Criminal Case No. 3160 of 2022)
1. The Accused was arraigned before the Chief Magistrate's Court at Makadara on two charges under the Computer Misuse and Cybercrime Act of 2018;
Count 1: Cyberbullying/harassment contrary to Section 27 of the Computer Misuse and Cybercrime Act, 2018. The particulars of the offence being that on diverse dates between 14th June, 2022 and 16th June, 2022 between the Kiambaa area and Kasarani Sub County, within Nairobi County, he wilfully shared nude pictures of one FWM using the Telegram App to her colleagues, friend and family members knowing it will detrimentally affect her.
Count 2: Wrongful distribution of obscene or intimate images contrary to Section 37 of the Computer Misuse and Cybercrime Act, 2018. Particulars: On the 14th of June 2022, between the Kiambaa area and Kasarani Sub County, within Nairobi County, he distributed images, namely nude photos of FWM, through the Telegram app and WhatsApp App.
2. The Appellant pleaded guilty to Count 1, and the trial Court sentenced him to pay a fine of Kshs.5 million and, in default, to serve 5 years’ imprisonment. A plea of not guilty was entered for Count 2.
3. The Appellant filed this appeal after being dissatisfied with the conviction and sentence. In his Petition of appeal, he raised the following grounds; THAT-
I. The learned Principal Magistrate erred in law and fact in convicting the Appellant, whereas the appellant did not understand the charge and what was expected of the Appellant being a layman.
II. The Appellant did not understand the language of the Court as nobody explained to the Appellant in a layman’s language.
III. The Appellant was not given ample time and opportunity to explain and/or give evidence, but the sentence was hastily passed against the Appellant by the Court without his understanding of the Court process.
IV. The sentence was too harsh and punitive in the circumstances, and the Court was not lenient.
V. That the sentence did not match the charge laid against the Appellant.
VI. The sentence of 5 years’ imprisonment was of great magnitude and should have been reduced to be fair and justifiable.
VII. The learned Principal Magistrate erred in law and fact by failing to analyze and evaluate the entire record as required by law.
VIII. That the Appellant’s conviction was bad in law and manifestly unsafe.
4. The State conceded the appeal.
5. At the appeal hearing, the parties made oral submissions. The Appellant also filed written submissions, which I have considered alongside the cited authorities.
6. The Appellant contends that he misunderstood the charges against him and was unclear about the difference between the offences listed in count 1 and count 2. He argues that the trial Court did not adequately explain the details of the offence to him and his plea was equivocal.
7. The Appellant submitted that he lacked a clear understanding of the Court process and felt that he was not afforded sufficient time to comprehend the proceedings. He expressed concerns about the complexity of the legal process and stated that he was overwhelmed by the information presented. According to the Appellant, this lack of clarity and time hindered his ability to participate effectively in his own defence and fully grasp the implications of what was occurring in the courtroom.
8. The State conceded that the facts read were at variance with the offence charged. He urged the court to review the provisions of Section 27 of the Computer Misuse and Cybercrime Act. Further, that the facts outlined in that Section should pertain to communication rather than dissemination, which are the key elements of Count 2.
9. On the sentence, the Appellant submitted that he understood that the sentencing was meant for both counts and running concurrently. He urged the Court to find that the sentence was harsh and excessive.
10. From the submissions, the central issue for determination is whether the Appellant's plea of guilty was unequivocal enough to warrant a valid conviction and sentence.
11. The plea-taking process plays an essential role in any case, making it imperative to follow the procedures with precision and care. Failure to do so can result in the potential loss of liberty for an accused person.
12. In Criminal Appeal 365 of 2011, John Muendo Musau v Republic, [2013] eKLR, the Court of Appeal, in reference to the decision in Adan v Republic discussed the process of plea taking as follows;
(5) On this argument, we wish to state that we have outlined the procedure followed before the trial Court at the time of taking the plea. The legal principles to be applied in plea taking in all criminal cases were well enunciated in the locus classicus case of Adan v Republic [1973] EA 445 where the Court held: -(i)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.
(ii)The accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded.
(iii)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.
(iv)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.
(v)If there is no change of plea a conviction should be recorded and a statement of facts relevant to sentence together with the accused’s reply should be recorded.”
13. I have reviewed the proceedings before the trial Court. The record shows that the charge was read to the accused person in Kiswahili, which is stated to be the language the Appellant understood. The Appellant responded in Kiswahili; ‘Kweli’ in count 1 and ‘Si ukweli’ in count 2. This translates to "True" and "It is not true." respectively.
14. The facts read to the Appellant were as follows;
“Facts of the case are that on 16th June, 2022, the complainant FW who was in a relationship with the accused Joseph Mungai who was an ex and she reported that accused was sharing photos of her to family members. Investigations were done and it was established that accused transferred the photos to complainant’s colleagues and also shared a link. Police traced the accused on 17th June, 2022 at Ndengeru area. Accused was arrested and availed in court. I have the extracts of the telegram mail. I have photos I produce as exhibits”
15. The Appellant was convicted in Count 1 which offence is prescribed by Section 27 of the Computer Misuse and Cybercrime Act, 2018. The Section provides as follows;
“27. (1) A person who, individually or with other persons, wilfully communicates, either directly or indirectly, with another person or anyone known to that person, commits an offence, if they know or ought to know that their conduct —
(a) is likely to cause those persons apprehension or fear of violence to them or damage or loss on that persons' property; or (b) detrimentally affects that person; or
(c) is in whole or part, of an indecent or grossly offensive nature and affects the person”.
16. I examined the context in which the plea was entered. The response of “Kweli” – "True" The term ‘Kweli’ can be interpreted as an admission of guilt. However, when compared to the more direct response in the second count, "Si Kweli," which means "It is not true," questions arise regarding the accused's admission, especially when evaluated in the context of the entire proceedings and the issue of mixed-up facts, which I will elaborate on below.
17. After evaluating the presented facts, I concur with the Applicant's assertion that these facts specifically pertain to Count 2, which addresses the wrongful distribution of obscene or intimate images. It is clear that the facts described do not apply to the offence outlined in Count 1, indicating a distinct separation between the two counts and their respective allegations.
18. The trial Court recorded the response in English: ‘The facts are correct.’ However, the translation was proceeding in Kiswahili, and the exact response, if made in Kiswahili, ought to have been recorded to ascertain the Appellants' understanding at that time and that the plea was made knowingly. The current record shows that an admission of facts was expressed in English, rather than in the exact words used by the accused. It is unclear whether these facts were also explained in Kiswahili. Therefore, the Court cannot assume that Kiswahili, a language the appellant understands, was the language used to read or explain the facts. The Court's obligation to record every word precisely becomes even more crucial when an accused person is facing multiple charges.
19. The Appellant in mitigation stated as follows;
“I pray for time to speak to the complainant. I pray for leniency. I was dealing with emotions after she left me. We had dated for 7 years. The complainant is 21 years old. I took the videos when we were together and some she had sent to me.”
20. The mitigation that was offered renders the plea equivocal regarding the count for which the court entered a plea of guilty. The facts read were at variance with the charge.
21. The offence carries severe penalties, including heavy fines and imprisonment. Given the circumstances of the case, the trial Court should have warned the Appellant about the repercussions of his response, especially since he did not have legal representation and considered giving the Appellant time. While it is commendable to act swiftly after a plea of guilty and to convict based on admitted facts, allowing additional time enables a self-represented litigant to better understand the process and prepare effectively.
22. I have concluded that the plea was not clear enough to justify a legitimate conviction and subsequent sentence.
23. Regarding the sentence, Section 27 (2) of the Computer Misuse and Cybercrime Act, 2018 which the Appellant was convicted under provides that;
“A person who commits an offence under subsection (1) is liable, on conviction, to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding ten years, or to both.”
24. The sentence meted was within the law. It was only for Count 1, and therefore, the ground raised by the Appellant of the sentence running concurrently does not apply.
25. The case is still ongoing for Count 2, where a plea of not guilty was entered. The Appellant has been in custody and was not admitted to bond due to his conviction on Count 1. The lower court case is scheduled for a mention on 20th November, 2024.
26. In conclusion, I hereby proceed to make the following orders:
I. The Appellant’s conviction is hereby quashed and sentence set aside;
II. The Appellant shall be retried at the Chief Magistrate’s Court at Makadara in Criminal Case 3160 of 2022;
III. To enhance his access to justice, as provided under Articles 48, 49, and 50 of the Constitution, this Court admits him to a bond of Kshs.50,000/= with one surety for the same amount. The trial Court will conduct the bond approval and may review the terms, based on a social inquiry, if the appellant cannot meet the bond terms.
IV. If the appellant remains in custody, the prison authorities are required to present him before the trial Court on the designated date.
It is so ordered.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 31ST day of OCTOBER, 2024.
In the presence of;
1. Court Assistant: Beryl
2. Mr. Kinuthia, Advocate for the Appellant
3. Mr. Omondi, ODPP for the Respondent