The appellant was charged with the offence of Stupefying in order to commit a felony contrary to section 230 of the Penal Code. The particulars of the offence were that on the 16th day of September 2023 along Nairobi-Mombasa Highway, while aboard Coast Bus (Mombasa) Ltd bus Reg. No KCF 103X between Mtito Andei and Salama Market within Makueni County, the appellant with intent to steal, administered unknown stupefying drug to Miriam Kilonzi.
Count II was Stealing contrary to Section 268(1) as read with section 275 of the Penal Code. The particulars of the offence were that on the same day and at the same place, the appellant stole one Hewlett Packard (HP) laptop valued at kshs thirty five thousand only (kshs 35,000), Hewlett Packard (HP) laptop charger valued at kshs one thousand five hundred shillings only (kshs 1500), one VIVO smart phone valued at kshs twenty thousand shillings only (kshs 20,000), the property of Miriam Kilonzi.
In the alternative to count II, he was charged with the offence of Handling Stolen Goods contrary to section 322(1) of the Penal Code. The particulars of the offence were that on the 16th day of September 2023 at 0750 hrs at Salama Police Station in Mukaa Sub-County within Makueni County, otherwise than in the course of stealing, the appellant, dishonestly retained one Hewlett Packard laptop, one Hewlett Packard laptop charger, one Vivo smartphone, knowing or having reason to believe them to be stolen goods.
The appellant pleaded guilty to Count I and II.
The facts as read by the prosecution were that
On 16/09/23 the complainant boarded a bus. As she was boarding the bus the accused helped her with her bag and they started speaking. At Mtito Andei, the accused was spotted walking away with a bag. The complainant who was in bad condition could only manage to scream. The passengers apprehended the accused with a laptop worth Ksh 35,000/= with its charger and her smart phone worth kshs 20,000/= all belonging to the complainant. They took the accused to the police station.The laptop, charger and phone were produced as P exhibit 1, 2 and 3 respectively
The accused person pleaded guilty to the facts and was convicted on his own plea.
The prosecutor submitted that he was a first offender.
In mitigation the accuse told the court that he sought for forgiveness. That the devil made him put the drug in the food, that he had three children who depended on him and one was a cripple. that he would start going to church if he was forgiven.
In sentencing him on 18th September 2003, the court stated: The accused committed a heinous crime that put the complainant in danger, I hereby sentence him to a custodial sentence of 3 years for count 1 and …3 years for count 2. The sentence to run concurrently
The AppealThe appellant appealed against the conviction and sentence and raised the following grounds;
That the learned magistrate misdirected himself in fact and law by making a finding and convicting the appellant for the charges made without sufficient evidence and based his finding on the appellant’s plea of guilty thereby occasioning a failure of justice.
That the learned magistrate misdirected himself both in fact and in law by failing to appreciate the fact that the appellant being a non-citizen did not understand the Kenya Judicial process, the nature and consequences of the charges against him and the fact that the prosecution had failed to take all necessary steps in informing and ensuring that the appellant was aware of his rights under Article 50 of the Constitution before waiving them away and a plea of guilty was thereby entered.
That the learned magistrate misdirected himself in fact and law by not appreciating that the prosecution’s case against the appellant was fraught with inconsistency and great doubt.
That the learned magistrate misdirected himself in fact and law by passing a harsh sentence (a maximum of three years on count II) despite ordering the accused to return to the complainant’s the alleged stolen goods while not appreciating the fact that the accused was a 1st offender and the offence was a misdemeanor punishable with a reasonable fine.
The grounds raise the issues of whether the evidence was sufficient to convict, or was fraught with inconsistency and great doubt, whether the appellant was prejudiced as a foreigner, whether the appellant’s right to fair trial were violated by the court’s failure to warn him of the vagaries of pleading guilty, and whether the sentence was harch and excessive.
Directions were given that the appeal be canvassed through written submissions. Accordingly, the parties complied and filed their respective submissions.
The SubmissionsThe Appellant’s Submissions
The appellant submitted that no evidence was produced in court to clarify the food that was allegedly drugged and the alleged drug used to stupefy the complainant was not produced. That the investigating officer did not get any drug or poison on his body or personal belongings. That the prosecution simply relied on his confession and the trial court erroneously convicted him without seeking to clarify the truth.
He submitted that the prosecution did not produce receipts to confirm ownership or value of the alleged stolen items and none of the passengers or complainant were brought to testify that indeed he was seen carrying the items. He submitted that he had no knowledge of the contents of the complainant’s bag and did not transfer the alleged stolen items to his own bag. That the alleged stolen items were in the bag of the complainant and he was simply helping her.
He submitted that no evidence was produced to demonstrate that he had the intention of stealing or parting away with the alleged stolen items. That the bag used to carry the alleged stolen items was never produced as evidence.
He submitted that the trial court did not warn him of the consequences of pleading guilty to the charges and the consequences of waiving his right to a fair trial as articulated under Article 50 of the Constitution. He relied on Paul Matungu -vs- R (2006) eKLR and Boit -vs- R (2002) KLR 815 where it was held that a court that accepts a plea of guilty must warn the accused person of the consequences and the accused person must be made to understand what he is pleading guilty to.
With regard to the sentence, he submitted that it was harsh and he urged this court to substitute it with a reasonable fine. That the alleged stolen goods were returned to the owner and no prejudice shall be occasioned on either party. He relied on Tonny Kiprono Ngetich -vs- R [2019] eKLR where the court stated;
“In the circumstances, the appeal against sentence succeeds. The appellant has been in prison since 16th November 2017, a period of 14 months. Given the fact that he was a first offender, I believe that the period served is sufficient punishment. Accordingly, I allow the appeal and substitute the sentence of three years imprisonment to the time already served. The appellant shall accordingly be set at liberty unless otherwise lawfully held.”Submissions by the Respondent
The State opposed the appeal through Prosecution Counsel Victor Kazungu. He identified the following as the issues for determination;
Whether the conviction is legal and safe,
Whether the jail term is fair and proportionate,
Whether this court should review or vary the sentence.
Relying on section 348 of the Criminal Procedure Code, he submitted that an appellant does not have a right to appeal against conviction where he/she is convicted on his/her own plea of guilty. That the plea was unequivocal and the assertion by the appellant that he did not understand the charge and particulars is not factual. That he would not have sought for forgiveness if he did not understand. Mr. Kazungu relied on Tobicho Wekesa & 2 Others -vs-R[[2022] eKLR where the court held;
“The court notes that the appellants tendered in their mitigation. The 1st Appellant asked for forgiveness and that he was born in the year 2000, the 2nd Appellant on his part asked for forgiveness stating that he was a student and the 3rd Appellant asked for forgiveness and that he will not repeat. The mitigation such as the one tendered could not have been offered had the appellants not been aware of the charges leveled against them. The court is thus satisfied that the appellants clearly understood what was at stake. The plea cannot be said to be equivocal.”He submitted that in arriving at the sentence, the trial court took into account all the relevant considerations including mitigation, submissions, the need to protect the community from the risk of stupefaction & stealing as well as the sentencing policy guidelines. He contended that the only convincing mitigating factor on record is the fact that the appellant is a first offender.
He submitted that the maximum sentence for the offence of stupefying is life imprisonment and for stealing is 3 years. Consequently, he submitted, that the sentences cannot be said to be excessive or oppressive. That the trial court had to find a balance between settling on a lenient sentence and the need to protect the public from exposure to crime. He relied on R -vs- Howells 1999 1ALL ER 50 which was cited in Benson Nkaramata Sakita –vs-R [2018]eKLR as follows;
“..courts should always bear in mind that criminal sentences are in almost every case intended to protect the public, whether by punishing the offender or reforming him and others, or all of these things. Courts cannot and should not be unmindful of the important public dimension of criminal sentencing and the importance of maintaining public confidence in the sentencing system.”As to whether this court should review or vary the sentence, he submitted that this court should not disturb a sentence of a trial court unless the sentence is found to be illegal and manifestly oppressive. He relied on Benson Nkaramata (supra) where the Court (Gitari J) held that;
“The principles upon which appellate court will act in exercising of its jurisdiction to review sentences are firmly established…The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James v Republic 19 EACA 147, “it is evident that the judge has acted upon some wrong principles or over looked some material factor. To this, we would also add third criteria, namely that the sentence is manifestly excessive in view of the circumstances of the case”Duty of Court
It is now settled that the duty of a first appellate Court is to scrutinize the evidence on record, make it’s own findings and draw it’s own conclusions giving due allowance to the fact that the trial Court had the advantage of seeing and hearing the witnesses. There were no witnesses in this case hence the disadvantage is eliminated.
Having looked at the grounds of appeal, the rival submissions and the entire record, it is my considered view that the following issues arise for determination;
Whether the plea was unequivocal.
Whether the sentence is excessive and harsh.
Whether the plea was unequivocal.The procedure for taking plea is provided under section 207 of the Criminal Procedure Code as follows;
(1) 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.(2) 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.
The procedure was elaborated Adan –vs- Republic(1973) EA 445 at 446 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.The record shows that on 18/09/2023, the substance of the charge(s) and every element thereof were stated to the appellant in the Kiswahili language which he understood and upon being asked whether he admitted or denied the truth of the charges, he responded ‘Kweli/true’ to both counts. The facts as stated above were read and he responded; ‘The facts are correct’. Consequently, he was convicted on his own plea of guilty.
I am satisfied that the appellant understood the charge he was facing, he understood the facts as read to him and he responded to those facts. Upon conviction, he continued to express remorse and regrets at the offence. So up that point the record is clear that and the plea was indeed unequivocal
The appellant being a foreigner was not an issue. he understood and used the Kiswahili language and I found nothing on the record to demonstrate that he was disadvantaged or prejudiced in any way.
As to the evidence, what was placed before the court were the facts of the case which established the offences. It is correct that the prosecution did not present before the court evidence to support the allegation that of stupefying, especially where the charge states ‘administered unknown stupefying drug”
In drawing the charges, what was the state going to support the charge with? How did the state know that a stupefying drug whether known or unknown had been administered upon the complainant? The facts to this simply stated that the complainant was in a bad condition and could only scream. What was this bad condition? Did she go to hospital? Was she examined? Really what was before the court to support that allegation?
It would not be right for the state to bring a charge and wait to rely on the confession of the accused to get a conviction. The criminal justice system cannot be seen to be fishing. It must come with the requisite proof een where an accused person is pleading guilty. That safeguards against pleas that may be influenced by other factors.
Hence with respect to the 1st count I must agree with the appellant that there was nothing placed before court in the facts to support the charge of stupefying.
With respect to the second count, the appellant was arrested by members of the public while in possessing of the complaint’s bag with her property inside it. It is not common to travel with receipts of ones’ property. The items were recovered from the appellant he was walking away with them, at that point he had taken them from the rightful own and cannot escape the same. His statement that he was merely assisting her cannot be taken with any seriousness because he was out of the bus with her bags while she was inside.
The submission that the court ought to have warned the appellant of the consequences of his plea of guilty is correct. It is supported by precedents which show that where an accused is charged with a serious offence that may attract a long prison term, the trial court is obligated warn the accused of the consequences of pleading guilty.
The offence of stupefying is provided for under Section 230 of the Penal Code provides that;
Any person who, with intent to commit or to facilitate the commission of a felony or misdemeanour, or to facilitate the flight of an offender after the commission or attempted commission of a felony or misdemeanour, administers or attempts to administer any stupefying or overpowering drug or thing to any person, is guilty of a felony and is liable to imprisonment for life.The offence of stealing attracts a maximum sentence of three years; handling stolen goods attracts a maximum sentence of fourteen years. Consequently, the appellant was facing the probability of life imprisonment. In Elijah Njihia Wakianda –vs- Republic [2016] eKLR the Court of Appeal stated that;
“… We also think that the elements of the offence are not complete if the sentence, especially if it is a severe and mandatory sentence, is not brought to the attention of the accused person. One surely ought to know the consequences of his virtual waiver of his trial rights that the Constitution guarantees him. That did not occur here and yet the appellant was unrepresented calling upon the trial court to be particularly solicitous of his welfare.… The officer presiding is not to be a mere umpire aloofly observing the proceedings. He is the protector, guarantor and educator of the process ensuring that an unrepresented accused person is not lost at sea in the maze of the often-intimidating judicial process.”
In Fidel Malecha Weluchi –vs- Republic [2019] eKLR Odunga J. held that: -
“In this case since the charge which the appellant faced carried a prima facie minimum sentence of twenty years, it is my view that in such serious offences where the sentences may either be long or indefinite, the Court must ensure not only that the accused understands the ingredients of the offence with which he is charged at all the stages of the plea taking but that he also understands the sentence he faces where he opts to plead guilty. That in my view is what is contemplated under Article 50(2) of the Constitution which provides for the right to a fair trial. Whereas the said Article prescribes certain ingredients of a fair trial, the Article employs the use of the word “includes” which means that what is prescribed there under is not exclusive but just inclusive since Article 19(3) of the Constitution provides that (3) The rights and fundamental freedoms in the Bill of Rights “do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognized or conferred by law, except to the extent that they are inconsistent with this Chapter” while Article 20(3)(a) thereof enjoins the Court to “develop the law to the extent that it does not give effect to a right or fundamental freedom”.The appellant was unrepresented when he took plea and it is clear from the above authorities that the trial magistrate had a duty of warning him of the consequences of pleading guilty. To that end the appellant’s trial was was not fair as required by Article 50 of the Constitution.
In my view that would require that this court makes a determination on what to do with the charges of stupefying and handling stolen property.
Ideally a retrial would resolve the issue, giving the court the opportunity to correct the error and the appellant the opportunity for a trial that would be fair.
This is what the Court of Appeal held in
Obedi Kilonzo Kevevo –vs- Republic [2015] eKLR “Generally, where a suspect has not had a satisfactory trial, the fairest and proper order to make is an order for a retrial. A retrial on the other hand will be ordered only where the interests of justice require it and if it is unlikely to cause injustice to the appellant. In the case of Muiruri –Vs- Republic (2003) KLR 552, the court considered a similar situation and held as follows, inter alia: -“Generally, whether a re-trial should be ordered or not must depend on the circumstances of the case. It will only be made where the interest of justice require it and if it is unlikely to cause injustice to the appellant. Other factors include illegalities or defects in the original trial, length of time having elapsed since the arrest and arraignment of the appellant; whether the mistakes leading to the quashing of the conviction were entirely the prosecution making or not.” In the criminal justice system, the law requires that the right of the appellant must be weighed against the victim’s right. In this case the appellant has been in confinement for three (3) years. Balancing the two competing interests, we believe justice demands that the case be re-heard in the subordinate court.”
And in Samuel Wahini Ngugi –vs- Republic [2012] eKLR the Court of Appeal held that: -
“The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar vs. R (1964) EALR 483, the predecessor to this Court stated as concerns the issue of retrial in criminal cases as follows:‘It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered…In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person.”
I have already found that the 1st count had not been properly established to warrant the conviction. I find that that is a good ground not to allow a retrial, and there is nothing in the facts to show that the prosecution had the requisite evidence to establish the same
That leaves count 2 on and the sentence of 3 years’ imprisonment.
Whether the sentence is harsh and excessive? judicious. There are numerous authorities to the effect that the sentence imposed should be proportional to the crime. In Thomas Mwambu Wenyi – vs- Republic (2017) eKLR the Court of Appeal stated as follows:
“A sentence imposed on an accused person must be commensurate with the blame worthiness of the offender and that the court should look at the facts and circumstances of the case in its entirety before settling for any given sentence”.It is trite that sentencing is an exercise of discretion. In Shadrack Kipkoech Kogo - vs – R Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus: -
“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”The appellant was a first offender. The stolen items were recovered and returned to the owner. The maximum sentence for a first offender where the stolen items were recovered appears harsh only when considered in isolation from the first count.
In the circumstances I consider that it would be necessary to reconsider the sentence.
Ultimately the appeal succeeds on the 1st count. The conviction is quashed, the sentence set aside.
On the 2nd count the conviction is sustained.
To determine the appropriate sentence, I direct that a pre-sentence report be filed by PACS within 14 days hereof.