(Appeal from conviction and sentence in Msambweni Magistrates Court Traffic Case No. E015 of 2024 delivered on 29/2/2024 by Hon. Joy Brenda Mutimba, Resident Magistrate)
J U D G M E N T
1. The appellant, Rashid Muraf Yusuf was charged, convicted and sentenced with the traffic offence of driving on a road a laden motor vehicle that exceeds the maximum dimensions permitted for such a vehicle contrary to section 55(2) as read with section 58(1) and Rule 41(2) of the Traffic Act (Cap. 403) Laws of Kenya that on 28/2/2024 at about 1130 Hours at Kidimu area along Shimoni-Kanana road in Kwale County within Coast region being the driver of motor vehicle registration number KBF 350H make Isuzu, drove the said vehicle along the said public road with an overall motor vehicle width of 5.0 metres against the maximum allowed width of 2.65 metres hence exceeding by 2.35 metres and overall height of 5.0 metres against allowed height of 4.3 metres hence exceeding by 0.7 metres as per the attached dimensions form. A wideload dimension form from the Kenya National Highways Authority (KeNHA) dated 28/2/2024 showing the allowable, measured and excess dimensions was produced as exhibit.
2. The appellant pleaded guilty and was sentenced and fined KShs 100,000/= in default to serve 3 months imprisonment.
3. Dissatisfied with the manner with which the plea was taken and the sentence, he has appealed to this court through a petition of appeal dated 1/3/2024 on the grounds that the plea was equivocal, unfinished and ambiguous, that the facts were not read out to him and thus he never responded to the same. That the charge sheet was defective and the charge was not supported by facts and that the court failed to explain to the appellant the consequences of pleading guilty, the conviction and likely sentence. Also, that the trial court failed to consider the mitigation by the appellant and thereby imposed a harsh and excessive sentence based on extraneous factors.
4. The appellant therefore prays that this appeal be allowed and the conviction and sentence be set aside, the appellant be refunded the sum of KShs 98,889.00 paid as fine and the matter be set down for fresh trial before a different magistrate.
5. The appeal was heard by way of written submissions. The appellant’s advocate filed submissions dated 29/7/2024. Learned counsel submits that this court should interrogate the lower court record to determine whether the proceedings were taken in compliance with the law.
6. Learned counsel submits that the failure to read the facts to the appellant in a language that he understands is contrary to Article 50(2) of the Constitution which guarantees the right to a fair trial which includes the right to be informed of the charge with sufficient detail to answer it and section 207(1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya on plea taking. Learned counsel faults the proceedings as simply indicating the language as English/Kiswahili, without indicating which language the appellant elected to use. That the response of the appellant to the charge as being recorded as “true” does not indicate what exactly he was agreeing to and whether all the ingredients of the offence were explained to him and the proceedings simply showing that “facts as per charge sheet” after which the prosecution produced the wide load dimension form and order to remove vehicle from road as exhibits.
7. Learned counsel relies on the case of Mose v R (2002) 1 EA ,163, where the Court of Appeal Chunga CJ, Lakha and Okubasu JJA held with regard to plea taking that;
“The procedure for calling upon an accused to plead required that the accused admit to all the ingredients of the offence charged before a plea of guilt could be entered against him. The words “it is true” standing on their own did not constitute an unequivocal plea of guilt. It was desirable that every constituent ingredient of the charge be explained to the accused so that he should be required to admit or deny every constituent.”
8. Learned counsel has urged the court to interfere with the conviction despite it being on a plea of guilty for reasons that the plea was equivocal, unfinished and ambiguous. In support of that submission, he has cited the case of Alexander Lukoye Malika vs Republic [2015] eKLR where it was held that:
“A court may only interfere with a situation where an accused person has pleaded guilty to a charge where the plea is imperfect, ambiguous or unfinished such that the trial court erred in treating it as a plea of guilty. Another situation is where an accused person pleaded guilty as a result of mistake or misapprehension of the facts. An appellate court may also interfere where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to law. Also, where upon admitted facts the Appellant could not in law have been convicted of the offence charged.”
9. Learned counsel also submits that the charge sheet does not indicate whether the road upon the appellant was driving was public or private. His argument is that the stated road does not form part of public roads under KeNHA as outlined by the First Schedule of the Roads Act, 2007.
10. Learned counsel also submits that Rule 41(2) of the Traffic Act as cited is non-existent. This learned counsel submits led to the appellant being prejudiced. He has cited in support of the same, the case of Ankush Manoj Shah v Republic [2016] KEHC 8448 (KLR) where the High Court held that:
“From the foregoing, having observed that firstly, the particulars of the charge did not disclose an offence and secondly, that the Applicant was charged under no known law, the charge sheet ought to have been rejected. In the result, I set aside the order of the learned trial magistrate made on 18th August, 2016 directing that the matter proceeds for plea. I substitute it with an order that the charge sheet be and is hereby rejected and dismissed under Section 89(5) of the Criminal Procedure Code. The prosecution is at liberty to choose to charge the Applicant afresh. It is so ordered.”
11. Learned counsel for the State Ms Mwaura conceded the appeal stating that she agreed with learned counsel for the appellant that indeed, there was an irregularity as facts were not read to the appellant. In that case, the proceedings could be set aside and the appellant taken back to the trial court for fresh plea taking.
12. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
13. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
14. The issue for determination in this appeal is whether plea taking was properly done by the trial court and whether the plea of guilty was unequivocal.
15. Article 50 (2)(b) of the Constitution provides that: -
“(2). Every accused person has the right to a fair trial, which includes the right-
(a) …
(b) to be informed of the charge, with sufficient detail to answer it.”
16. Thus, where the charge does not contain sufficient detail, it will not accord with this constitutional imperative of a fair trial.
17. Section 207 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) provides for how plea taking before the magistrates court should be conducted. It provides as follows:
“S. 207(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 plea agreement;
(2) If the accused person admits the truth of the charge otherwise than by 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.”
18. This statutory provision is expounded in the locus classicus on plea taking case of Adan vs R (1973) EA 445 as follows:
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 take the facts and the accused should be given an opportunity to change or explain the facts or to add to any relevant facts.
iv). If the accused does not agree to the facts or raises any question of his guilt in his reply it must be recorded and change of plea entered.
v). If there is no change of plea, a conviction should be recorded as well as a statement of facts relevant to sentence and the accused reply.
19. In this case, the appellant was represented by counsel at plea taking. After the substance of the charge had been read over to the appellant, his response is recorded as “true.” The court then recorded a plea of guilty. The next step by the prosecution is recorded as “facts as per charge sheet” followed by production of exhibits after which a conviction on plea of guilty was entered followed by a statement by the prosecution that the appellant had no previous records. Mitigation by the appellant then followed after which the court passed the sentence.
20. Learned counsel for the appellant submits that the language of the court was not clear because in the typed record of proceedings, the language is indicated as “English/Kiswahili.” Learned counsel submits that from these proceedings, it is not clear whether the court inquired from the appellant which language he understood, what his response was, whether the proceedings were conducted in English or Kiswahili and whether the appellant understood the proceedings.
21. I have looked at the handwritten record of proceedings and I note that beside the language of interpretation being indicated as English/Kiswahili in typing, the learned trial magistrate indicated in handwriting beside this, “Kiswahili” at the end. That is an indication that the language of interpretation was Kiswahili. It could only be so after the court had inquired from the appellant and he indicated so. If not, there is no indication that the appellant raised the issue of him not understanding that language. Moreover, the appellant was represented by an advocate and I doubt that counsel would have been comfortable leaving the court to conduct proceedings in a language not understood by the appellant. There is no indication that counsel raised the issue with the court. He was therefore satisfied that the appellant was properly following the proceedings. I find that the proceedings were conducted in Kiswahili and they were well understood by the appellant. That ground of appeal cannot therefore succeed.
22. The next ground of appeal is that the conviction and sentence were based on charges not supported by facts.
23. Learned counsel for the appellant submits that the prosecutor did not state the facts to the appellant and consequently, he was not granted an opportunity to dispute or explain the facts or to add any relevant facts.
24. Ideally, I would find no issue with a prosecutor stating that “facts as per charge sheet” or that “facts are as laid down in the charge sheet” or “facts are as per the particulars in the charge sheet” for minor offences such as most offences under the Traffic Act (Cap. 403) Laws of Kenya are what one can term as self-explanatory. They do not need to be laid out elaborately for instance, how investigations were conducted to arrive at the decision to charge an accused person. Most times an accused person would be contend with the brief facts as stated in the particulars of the charge. For me, what is important is for the learned prosecutor to put those brief facts to the accused person and his response recorded. It is only when that is done that an accused person will have the opportunity to dispute or explain the facts or to add any relevant facts as laid down under the law and in the case of Adan (supra). The court will then be in a position to note whether the accused person agrees with the facts or not. This may not have been taken up by the accused person at the initial point when the substance of the charge is read to him or her. It is only after the accused has responded to the facts unequivocally that a plea of guilty can be entered. The importance of this step is fully explained in the Adan case above.
25. It is apparent from the proceedings before the trial court that this crucial step was not adhered to by the trial court in the case of the appellant herein. Consequently, the plea by the appellant was rendered unequivocal.
26. Learned counsel for the appellant also submits that it was not clear whether the road upon which the vehicle was being driven was private or public. That was however not among the grounds set out in the petition of appeal and so this court will not consider it. Issues for determination by the court cannot be introduced by way of submissions.
27. On the issue of Rule 41(2) of the Traffic Act being non-existent, I find that it is not ripe for consideration at this point given the appellant’s prayer for re-trial and court’s final determination of the appeal below.
28. Learned counsel for the appellant and for the respondent are agreed that there should be a retrial. Indeed, the appellant not having gone through a full trial it is not in the interest of justice to have him discharged. In the case of Pius Olima & another v Republic [1993] eKLR, the Court of Appeal considering the principles to be taken into account whether a retrial should be ordered or not said:
“Our attention was drawn to authorities that deal with the principles that should be applied when considering whether a retrial should be ordered or not…The principles that emerge are that a retrial may be ordered where the original trial, as was found by the High Court and with which we agree, is defective, if the interests of justice so require and if no prejudice is caused to the accused. Whether an order for retrial should be made ultimately depends on the particular facts and circumstances of each case.”
29. The facts and circumstances of this case call for a retrial. The witnesses should be readily available. I see from the charge sheet that they were two police officers and two civilians most likely officers from the Kenya National Highways Authority. Therefore it will not be difficult to make them available to testify.
30. Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant and order for retrial by a magistrate with jurisdiction other than Hon. Joy Mutimba, to take plea.
31. On the issue of bond upon his presenting before the court, the case will be mentioned on 6/2/2024 before the head of station at Msambweni Law Courts for directions on plea taking. Since the appellant had paid a fine and the sentence has been set aside, he need not be rearrested as the fine can act as bail in the meantime awaiting fresh plea taking.
32. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the virtual platform, Teams at Kwale this 23rd day of January 2025 in the presence of:
Kulecho for the appellant.
Vallerie for the respondent.
Johnson court assistant.
J U D G M E N T
1. The appellant, Rashid Muraf Yusuf was charged, convicted and sentenced with the traffic offence of driving on a road a laden motor vehicle that exceeds the maximum dimensions permitted for such a vehicle contrary to section 55(2) as read with section 58(1) and Rule 41(2) of the Traffic Act (Cap. 403) Laws of Kenya that on 28/2/2024 at about 1130 Hours at Kidimu area along Shimoni-Kanana road in Kwale County within Coast region being the driver of motor vehicle registration number KBF 350H make Isuzu, drove the said vehicle along the said public road with an overall motor vehicle width of 5.0 metres against the maximum allowed width of 2.65 metres hence exceeding by 2.35 metres and overall height of 5.0 metres against allowed height of 4.3 metres hence exceeding by 0.7 metres as per the attached dimensions form. A wideload dimension form from the Kenya National Highways Authority (KeNHA) dated 28/2/2024 showing the allowable, measured and excess dimensions was produced as exhibit.
2. The appellant pleaded guilty and was sentenced and fined KShs 100,000/= in default to serve 3 months imprisonment.
3. Dissatisfied with the manner with which the plea was taken and the sentence, he has appealed to this court through a petition of appeal dated 1/3/2024 on the grounds that the plea was equivocal, unfinished and ambiguous, that the facts were not read out to him and thus he never responded to the same. That the charge sheet was defective and the charge was not supported by facts and that the court failed to explain to the appellant the consequences of pleading guilty, the conviction and likely sentence. Also, that the trial court failed to consider the mitigation by the appellant and thereby imposed a harsh and excessive sentence based on extraneous factors.
4. The appellant therefore prays that this appeal be allowed and the conviction and sentence be set aside, the appellant be refunded the sum of KShs 98,889.00 paid as fine and the matter be set down for fresh trial before a different magistrate.
5. The appeal was heard by way of written submissions. The appellant’s advocate filed submissions dated 29/7/2024. Learned counsel submits that this court should interrogate the lower court record to determine whether the proceedings were taken in compliance with the law.
6. Learned counsel submits that the failure to read the facts to the appellant in a language that he understands is contrary to Article 50(2) of the Constitution which guarantees the right to a fair trial which includes the right to be informed of the charge with sufficient detail to answer it and section 207(1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya on plea taking. Learned counsel faults the proceedings as simply indicating the language as English/Kiswahili, without indicating which language the appellant elected to use. That the response of the appellant to the charge as being recorded as “true” does not indicate what exactly he was agreeing to and whether all the ingredients of the offence were explained to him and the proceedings simply showing that “facts as per charge sheet” after which the prosecution produced the wide load dimension form and order to remove vehicle from road as exhibits.
7. Learned counsel relies on the case of Mose v R (2002) 1 EA ,163, where the Court of Appeal Chunga CJ, Lakha and Okubasu JJA held with regard to plea taking that;
“The procedure for calling upon an accused to plead required that the accused admit to all the ingredients of the offence charged before a plea of guilt could be entered against him. The words “it is true” standing on their own did not constitute an unequivocal plea of guilt. It was desirable that every constituent ingredient of the charge be explained to the accused so that he should be required to admit or deny every constituent.”
8. Learned counsel has urged the court to interfere with the conviction despite it being on a plea of guilty for reasons that the plea was equivocal, unfinished and ambiguous. In support of that submission, he has cited the case of Alexander Lukoye Malika vs Republic [2015] eKLR where it was held that:
“A court may only interfere with a situation where an accused person has pleaded guilty to a charge where the plea is imperfect, ambiguous or unfinished such that the trial court erred in treating it as a plea of guilty. Another situation is where an accused person pleaded guilty as a result of mistake or misapprehension of the facts. An appellate court may also interfere where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to law. Also, where upon admitted facts the Appellant could not in law have been convicted of the offence charged.”
9. Learned counsel also submits that the charge sheet does not indicate whether the road upon the appellant was driving was public or private. His argument is that the stated road does not form part of public roads under KeNHA as outlined by the First Schedule of the Roads Act, 2007.
10. Learned counsel also submits that Rule 41(2) of the Traffic Act as cited is non-existent. This learned counsel submits led to the appellant being prejudiced. He has cited in support of the same, the case of Ankush Manoj Shah v Republic [2016] KEHC 8448 (KLR) where the High Court held that:
“From the foregoing, having observed that firstly, the particulars of the charge did not disclose an offence and secondly, that the Applicant was charged under no known law, the charge sheet ought to have been rejected. In the result, I set aside the order of the learned trial magistrate made on 18th August, 2016 directing that the matter proceeds for plea. I substitute it with an order that the charge sheet be and is hereby rejected and dismissed under Section 89(5) of the Criminal Procedure Code. The prosecution is at liberty to choose to charge the Applicant afresh. It is so ordered.”
11. Learned counsel for the State Ms Mwaura conceded the appeal stating that she agreed with learned counsel for the appellant that indeed, there was an irregularity as facts were not read to the appellant. In that case, the proceedings could be set aside and the appellant taken back to the trial court for fresh plea taking.
12. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
13. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
14. The issue for determination in this appeal is whether plea taking was properly done by the trial court and whether the plea of guilty was unequivocal.
15. Article 50 (2)(b) of the Constitution provides that: -
“(2). Every accused person has the right to a fair trial, which includes the right-
(a) …
(b) to be informed of the charge, with sufficient detail to answer it.”
16. Thus, where the charge does not contain sufficient detail, it will not accord with this constitutional imperative of a fair trial.
17. Section 207 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) provides for how plea taking before the magistrates court should be conducted. It provides as follows:
“S. 207(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 plea agreement;
(2) If the accused person admits the truth of the charge otherwise than by 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.”
18. This statutory provision is expounded in the locus classicus on plea taking case of Adan vs R (1973) EA 445 as follows:
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 take the facts and the accused should be given an opportunity to change or explain the facts or to add to any relevant facts.
iv). If the accused does not agree to the facts or raises any question of his guilt in his reply it must be recorded and change of plea entered.
v). If there is no change of plea, a conviction should be recorded as well as a statement of facts relevant to sentence and the accused reply.
19. In this case, the appellant was represented by counsel at plea taking. After the substance of the charge had been read over to the appellant, his response is recorded as “true.” The court then recorded a plea of guilty. The next step by the prosecution is recorded as “facts as per charge sheet” followed by production of exhibits after which a conviction on plea of guilty was entered followed by a statement by the prosecution that the appellant had no previous records. Mitigation by the appellant then followed after which the court passed the sentence.
20. Learned counsel for the appellant submits that the language of the court was not clear because in the typed record of proceedings, the language is indicated as “English/Kiswahili.” Learned counsel submits that from these proceedings, it is not clear whether the court inquired from the appellant which language he understood, what his response was, whether the proceedings were conducted in English or Kiswahili and whether the appellant understood the proceedings.
21. I have looked at the handwritten record of proceedings and I note that beside the language of interpretation being indicated as English/Kiswahili in typing, the learned trial magistrate indicated in handwriting beside this, “Kiswahili” at the end. That is an indication that the language of interpretation was Kiswahili. It could only be so after the court had inquired from the appellant and he indicated so. If not, there is no indication that the appellant raised the issue of him not understanding that language. Moreover, the appellant was represented by an advocate and I doubt that counsel would have been comfortable leaving the court to conduct proceedings in a language not understood by the appellant. There is no indication that counsel raised the issue with the court. He was therefore satisfied that the appellant was properly following the proceedings. I find that the proceedings were conducted in Kiswahili and they were well understood by the appellant. That ground of appeal cannot therefore succeed.
22. The next ground of appeal is that the conviction and sentence were based on charges not supported by facts.
23. Learned counsel for the appellant submits that the prosecutor did not state the facts to the appellant and consequently, he was not granted an opportunity to dispute or explain the facts or to add any relevant facts.
24. Ideally, I would find no issue with a prosecutor stating that “facts as per charge sheet” or that “facts are as laid down in the charge sheet” or “facts are as per the particulars in the charge sheet” for minor offences such as most offences under the Traffic Act (Cap. 403) Laws of Kenya are what one can term as self-explanatory. They do not need to be laid out elaborately for instance, how investigations were conducted to arrive at the decision to charge an accused person. Most times an accused person would be contend with the brief facts as stated in the particulars of the charge. For me, what is important is for the learned prosecutor to put those brief facts to the accused person and his response recorded. It is only when that is done that an accused person will have the opportunity to dispute or explain the facts or to add any relevant facts as laid down under the law and in the case of Adan (supra). The court will then be in a position to note whether the accused person agrees with the facts or not. This may not have been taken up by the accused person at the initial point when the substance of the charge is read to him or her. It is only after the accused has responded to the facts unequivocally that a plea of guilty can be entered. The importance of this step is fully explained in the Adan case above.
25. It is apparent from the proceedings before the trial court that this crucial step was not adhered to by the trial court in the case of the appellant herein. Consequently, the plea by the appellant was rendered unequivocal.
26. Learned counsel for the appellant also submits that it was not clear whether the road upon which the vehicle was being driven was private or public. That was however not among the grounds set out in the petition of appeal and so this court will not consider it. Issues for determination by the court cannot be introduced by way of submissions.
27. On the issue of Rule 41(2) of the Traffic Act being non-existent, I find that it is not ripe for consideration at this point given the appellant’s prayer for re-trial and court’s final determination of the appeal below.
28. Learned counsel for the appellant and for the respondent are agreed that there should be a retrial. Indeed, the appellant not having gone through a full trial it is not in the interest of justice to have him discharged. In the case of Pius Olima & another v Republic [1993] eKLR, the Court of Appeal considering the principles to be taken into account whether a retrial should be ordered or not said:
“Our attention was drawn to authorities that deal with the principles that should be applied when considering whether a retrial should be ordered or not…The principles that emerge are that a retrial may be ordered where the original trial, as was found by the High Court and with which we agree, is defective, if the interests of justice so require and if no prejudice is caused to the accused. Whether an order for retrial should be made ultimately depends on the particular facts and circumstances of each case.”
29. The facts and circumstances of this case call for a retrial. The witnesses should be readily available. I see from the charge sheet that they were two police officers and two civilians most likely officers from the Kenya National Highways Authority. Therefore it will not be difficult to make them available to testify.
30. Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant and order for retrial by a magistrate with jurisdiction other than Hon. Joy Mutimba, to take plea.
31. On the issue of bond upon his presenting before the court, the case will be mentioned on 6/2/2024 before the head of station at Msambweni Law Courts for directions on plea taking. Since the appellant had paid a fine and the sentence has been set aside, he need not be rearrested as the fine can act as bail in the meantime awaiting fresh plea taking.
32. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the virtual platform, Teams at Kwale this 23rd day of January 2025 in the presence of:
Kulecho for the appellant.
Vallerie for the respondent.
Johnson court assistant.