(From original Conviction and Sentence in Traffic Case No. E1338 OF 2024 of the Chief Magistrate’s Court at Mombasa-Hon. D .ODHIAMBO SRM)
1. The lower court file was called up pursuant to the application by the Accused in Traffic Case No. E3118 MOMBASA. The gist of the Applicant’s grievance is that the court did not read out the facts and did not give the Applicant a chance to mitigate and that the court acted out of malice and bias.
2. The Accused was charged with two counts in the lower court, as follows:-
“COUNT 1
Gross misconduct as a driver contrary to rule 66(1) as read with rule 69 of the Traffic Act cap 403 Laws of Kenya.
PARTICULARS
That on the 2nd day of August 2024 at about 1320hours along Changamwe Airport Road in Changamwe Sub-county within Mombasa County, being a driver of a motor vehicle registration number KDH 188H, make Toyota Matatu, did behave in an uncivil manner by uttering threatening words to a police officer that is “Nyinyi polisi wa traffic mnasumbua sana. Leo naenda nanyi hadi Nairobi usiposhuka. Au nikufanye kitu mbaya sana,” and drove him 12km away.
COUNT 2
Failing to obey verbal directions given by a police officer in uniform contrary to 52(1) of the Traffic Act Cap 404 Laws of Kenya.
PARTICULARS
That on the 2nd day of August 2024 at about 1320 hours along Changamwe Airport Road in Changamwe Sub-county within Mombasa County, being a driver of a motor vehicle registration number KDH 188H, make Toyota Matatu, did drive the said motor vehicle along the said road and failed to comply with verbal directions to drive the motor vehicle to the station having been arrested by No. 67193 PC George Omoro, a police officer in uniform, who was in execution of his duty for the offence of causing obstruction by parking along the dual-carriage way.
COUNT 3
Causing obstruction contrary to section 53 (1) as read with 53 (4) of the Traffic Act Laws of Kenya
PARTICULARS
That on the 2nd day of August 2024 at about 1320 hours along Changamwe Airport Road in Changamwe Sub-county within Mombasa County, being a driver of a motor vehicle registration number KDH 188H, make Toyota Matatu, did drive the said motor vehicle along the said public road and caused obstruction by deliberately parking a motor vehicle in the middle of the carriage way.
3. The Applicant pleaded guilty to the 3 charges. He was fined Ksh 50,000 in count 1 iand in default 6 months imprisonment , ksh 15,000 in count 2 and in default 3 months and in coint3 ksh 10,000 and in default 21 days ,
4.Being aggrieved, he filed these revision proceedings.
I called for and I have perused the proceedings of 8th August 2024 before Hon. D Odhiambo in order to satisfy myself as to the correctness, legality or propriety of the findings, sentence, orders and regularity of proceedings, pursuant to this court’s jurisdiction under Section 362 of the Criminal Procedure Code.
5.A glimpse of the proceedings shows that the plea was not unequivocal. The procedure by which the same was taken did not accord with Section 207 (1) and (2) of the Criminal Procedure Code and as enunciated in the celebrated case of Adan Inshair Hussein v. Republic[1974] JAL 124. The court delivered itself thus;
“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 guilt, 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 fact relevant to sentence. The statement of facts and the accused’s reply must, of course, be recorded.
The statement of facts serves two purposes: it enables the magistrate to satisfy himself that the plea of guilty was really unequivocal and that the accused has no defence and it gives the magistrate the basic material on which to assess sentence. It not infrequently happens that an accused, after hearing the statement of facts, disputes some particular fact or alleges some additional fact, showing that he did not really understand the position when he pleaded guilty: it is for this reason that it is essential for the statement of facts to precede the conv
5. From the above, the plea taking procedure is as hereunder;
“(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 in 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 r to add any relevant facts;
(iv) if the accused does not agree the facts or raises any question of his guilty 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 the facts relevant to sentence together with the accused’s reply should be recorded.” (Emphasis added).
6. In the case of John Muendo Musau -Vs- Republic [2013] eKLR the Court of Appeal having quoted the above passage in Adan proceeded to state:
“We want to add here that if the accused wishes to change his plea or in mitigation says anything that negates any of the ingredients of the offence he has already admitted and been convicted for, the court must enter a plea of not guilty. That is to say that, an accused person can change his plea at any time before sentence. The procedure laid out in Adan -Vs- Republic (Supra) is also provided for under Section 207 of the Criminal Procedure Code.”
7.This means that step (iii) in Adan is vitally important in ensuring that a plea of guilty is unequivocal.
8. In this case, the charges were properly read to the Accused who pleaded guilty thereto, but the facts were not subsequently read to him as required. The conviction on a plea of guilty was based on a statement by the DPP erroneously described as State Counsel (SC) that:
“Facts as per C/S (Charge Sheet).”
9. I understand this statement to represent step (iii) in Adan. To that statement, the Accused did not and could not respond. No facts were stated therein. Thus the conviction recorded thereafter has no legal basis and is irregular. The rest of the procedure adopted is consistent with the guidelines in Adan -Vs- Republic and Section 207 of the Criminal Procedure Code.
11.The purpose served by the statement of facts was set out in the Adan case (Supra) as two folds;
(i) allowing the magistrate to ascertain that the plea is unequivocal and the accused does not have a defence and
(ii) gives him the basic material to rely upon in assessing the sentence.
12. In the present case, the facts were not read out to the court nor the accused given the chance to raise questions as to his guilt which clearly called into question the unequivocal nature of the plea entered. This ultimately violated the Applicant’s right to a fair trial.
Further,The Applicant was also not given a chance to mitigate before the sentence was meted out. Again, this was a material defect.
13. The Applicant attributes these lapses to malice and bias. He however did not state how and why the trial court would have been biased against him or any instance where anyone else was treated differently.
14.This court is alive to the fact that plea courts are often inundated with heavy work load which must be handled with within a short time. However, it is important that procedural steps that exist as a safeguard for fair trial rights of Accused persons are not sacrificed. Of course, some mistakes may arise due to oversight and the sheer volume of work. I believe that was the case here and the trial court did not act maliciously.
15. For the foregoing reasons, there is sufficient reason to impugn the findings, sentence and proceedings of the lower court, which I proceed to do by quashing the convictions recorded in respect of count 1,2 and 3. I also set aside the respective sentences meted out by the plea court.
13.The next issue to be considered is whether a retrial should be ordered. In Fatehali Manji –Vs- Republic [1966] EA 343 the Eastern Africa Court of Appeal laid down principles governing this question as follows:-
“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 purpose 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 prosecutor is not 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 retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to the accused.”
14.The Court of Appeal also stated in Mwangi –Vs- Republic [1983] KLR 522 that:
“We are aware that a retrial should not be ordered unless the appellate court is of the opinion, that on a proper consideration of the admissible or potentially admissible evidence, a conviction might result.”
15.In the instant case the trial was vitiated through the mistake of both the court and the prosecution in its application of Sections 207 and 216 of the Criminal Procedure Code. The complainants were police officers and the offence arose from the same transaction. The Applicant has been in custody for 8 days. I believe that was sufficient time for him to reflect on his conduct and there is no need for a re trial.
16. The sum total of my analysis is that the application succeeds. The Applicant shall be forthwith set free unless otherwise lawfully held. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 13TH DAY OF AUGUST 2024.
W. KAGENDO
JUDGE
IN THE PRESENCE OF :
FOR THE APPLICANT
FOR THE RESPONDENT
BEBORA COURT ASSISTANT