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JudgmentRODGERS MULI MUNYAO VS The Republic17 min read

RODGERS MULI MUNYAO VS The Republic

High Court at Machakos High Court · · Hon.Lady Justice Noel Adagi

REPUBLC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NUMBER E057 OF 2023

RODGERS MULI MUNYAO..................................................APPELLANT

-VERSUS-

REPUBLIC.....................................................................RESPONDENT

JUDGMENT

  1. The Appellant was charged with 3 Counts. Count 1 was Rape Contrary to Section 3(1)(a)(b)(3) of the Sexual Offences Act No. 3 of 2006. The particulars are that on the 30th day of September 2023 at Koma area in Matungulu Sub-County within Machakos County, intentionally and unlawfully caused his penis to penetrate the vagina of SMN (name withheld) without her consent contrary to section 3(1)(a)(b)(3) of the Sexual offences Act No. 3 of 2006.
  2. The Appellant was also charged in with an alternative charge of committing an indecent act with an adult contrary to Section 11(A) of the Sexual Offences Act No. 3 of 2006.The particulars are that on the 30th day of September 2023 at Koma area in Matungulu Sub County within Machakos county intentionally touched the vagina of SMN (name withheld) with his penis against her will contrary to section 11(A) of the Sexual offences Act No.3 of 2006.
  3. The Appellant was also charged with Count 2 being escape from a police custody contrary to section 123 as read with section 36 of the Penal Code. The particulars are that on 30th day of September 2023 at Koma area in Matungulu Sub County within Machakos count being in lawful custody of SGT. George Makambo and PC Siele escaped from the said custody.
  4. The Appellant was arraigned in court on 9/10/2023 where he pleaded guilty to Count 1 and 2.
  5. The Trial Magistrate then convicted the Appellant of the charges on his own plea of guilty. The Appellant was thus sentenced to 10 years in jail for count 1 and 1 year in jail for count 2.
  6. Being dissatisfied with the decision of the Trial Magistrate, the Appellant has lodged the instant appeal against both the conviction and sentence vide the undated Memorandum of Appeal in which he raises two grounds of appeal namely:
  7. THAT the learned trial magistrate erred in both fact and law by explicitly not explaining to me the consequences of my plea of guilty
  8. THAT the learned trial magistrate erred in law by sentencing me by virtue of the minimum mandatory sentences espoused in the Sexual Offences Act.
  9. Directions were taken for the appeal to be canvassed through written submissions. The Appellant’s submissions are dated 16/9/2024 whilst those of the Respondent are dated 12/10/2024.

Appellant’s Submissions.

  1. The Appellant has submitted that throughout the entire proceedings, nowhere did the trial magistrate indicate on record that the Appellant was explicitly warned of the outcome of pleading positive to the charge and would be sentenced henceforth. The Appellant urged this court to find that the guilty plea entered by the trial court was not unequivocal and thus contrary to the tenets of s fair trial as espoused by Article 25(c) & 50 of the Constitution.
  2. The Appellant submitted that the unfamiliarity with the court procedure can be hypotherized to have led him to the entering of the plea for the interest of justice. To the Appellant, did the words "it is true" amount to admitting to the charge, can it be said that the Appellant understood what he was pleading to?
  3. The Appellant submitted that the record doesn't show that he understood the facts and knew what he was pleading to. He cited the cases of Adan v Republic (1973) EA 45 where safeguards were set out that are to be complied with fully when court is taking plea and the case of BOLT VS REP (2002)1 KLR 814 where the court held that;

"Before a court enters a plea of guilty, especially in serious offences, the accused person should be made to understand the consequences of pleading guilty....”"

  1. That in NJUKI VS REP (1990) KLR 334 the court held that;

“Pleas recorded in such words as “I admit” or “I plead guilty or “is true” or “I accept" cannot be considered as unequivocal pleas.”

  1. That in this instance the Appellant said "it is true" in answer to plea and "it is true" to the facts. These words without much a-do can't convinced the court that the Appellant fully understood the charges and hence pleaded guilty to every element of the charge as read to him by the prosecution. The Appellant submitted that he was unrepresented by an advocate and as such, rather imminent that he was lost in the intimidatory unfamiliar world of court proceedings and thus relied on the learned Magistrate to protect his rights as envisaged in the Constitution.
  2. The Appellant also cited the case of NJIHIA WAKIANDA VS REP CRIMINAL APPEAL NO.437/20 where the Court of Appeal held that:

"We think that it is good practice for the specific language used to state the elements of the charge be specifically stated. That should be established by specifically asking the accused what language he understands, and recording his answer before either using the language he mentions or ensuring a translator is present to convey the proceedings to him in the chosen language.

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 triaI 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".

  1. Further that in this case, it is not clear that the prosecutor stated the facts, or he only relied on the facts as stated in the charge sheet or that the Appellant was given an opportunity to dispute or explain the facts or to add any relevant facts before conviction was entered.
  2. By virtue of Section 362 of the CPC, the Appellant invited this court to analyse the trial court record and adjudge the issues raised in this appeal. That the plea of the Appellant cannot be safely accepted as unequivocal, and so the conviction of the Appellant should not be allowed to stand as it is not safe.

The Respondent’s submissions

  1. The Respondent submitted that the Appellant was availed in court on 9/10/2023. The charges were read to him in Kiswahili. The Respondent believes that the Appellant pleaded guilty. The record reflects that the gravity of the sentence was explained to the Appellant. The offence was there after read over to the Appellant and he stated for the main Count "it is true" and for Count 2“it is true”.
  2. The learned magistrate thereby entered a plea of guilty. The magistrate further noted that the Appellant was informed that the sentence in Count I will be 20 years in line with the Sexual Offences Act.
  3. The learned prosecutor thereafter read the facts of the case to the Appellant which facts have been set out hereinabove.
  4. The Appellant indicated that the facts were true. The learned magistrate then convicted the Appellant in his own plea of guilt. In mitigation the Appellant indicated that he accepted the charges and he prayed for forgiveness and he will not repeat the offence. The learned prosecutor submitted that though he has no records, the court was urged to note the nature of the offence and note that the complainant would be affected by the experience for the rest of her life. The court was urged to sentence within the law and note the minimum sentence.
  5. The Respondent submitted that the provisions of Section 207 (1) and (2) of the Criminal Procedure Code were followed thus the trial court properly followed the procedure on the plea of guilt and the sentence was appropriately meted to the Appellant. The Respondent cited the said provisions which provides 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.

  1. The Respondent submitted that the cited Section provides that when an accused person pleads guilty the admission should be recorded as nearly as possible in the words he used and the accused sentenced. The complainant is also awarded an opportunity to outline to the court the facts upon which the charge is founded. The Respondent cited the case of Jackson Wambua v Republic [2022] eKLR Odunga J (as he was then) in quoting Ombena v Republic [1981] eKLR indicated that the Court of Appeal outlined the manner of recording plea of guilty by quoting:

"In Adan v Republic [1973] EA 445, the Court of Appeal laid down in the simplest and plainest terms the manner in which pleas of guilty should be recorded and the steps which should be followed. It is appropriate to set out the holding in full-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 the facts relevant to sentence together with the accused's reply should be recorded."

The Judge further quoted K N vs. Republic [2016] eKLR, that:

“We think the court should also explain to the accused person the natural consequence of pleading guilty, the conviction and likely sentence”.

  1. The same is supported by W. Korir, J in Abdallah Mohammed vs. Republic [2018] eKLR where he expressed himself as hereunder:

"A plea of guilty can only be entered in respect of an offence known to the law...In a case where an accused person who is undefended pleads guilty to a charge, the court has a duty to ensure that the plea is unequivocal. As pointed out, the Appellant had no legal representation and the trial court ought to have taken steps to ensure that the Appellant understood every element of the charge and the facts read out to him. He also ought to have been warned, and that warning captured on record, that the offence he was about to plead to carried a prison sentence of not less than fifteen years. In my view, extra caution includes the question as to whether or not the facts as read out are true and whether the accused person would wish to make any comment. In fact, an accused person should be asked what he means by saying that the charge read to him is true. His explanation should then be captured on the record so as to form part of his plea. From the record, it is apparent that the Appellant was just but a lad aged 21 years and the trial court ought to have gone the extra mile to ensure he understood the consequences of entering a plea of guilty.”

  1. Odunga J stated in Jackson Wambua v Republic [2022] eKLR that:

“In this case the Court informed the Appellant that the charge facing him was a serious one. In my view that was not sufficient. The Court ought to go further and informed the accused what the seriousness of the offence was. Where the seriousness is the sentence which the accused is liable to face, the Court ought to point out that sentence. If it is the fine, then the Court ought to inform the accused of the fine. In this case the minimum prescribed fine is, on the face of it, heavy. Accordingly, the Appellant ought to have been informed of this."

  1. The Respondent submitted that the procedure was duly followed when the Appellant pleaded guilty. The record reflects that the charge was explained in a language that the Appellant understood. Further the gravity of the sentence was explained to the Appellant before the charges were read over to the Appellant. The Appellant's plea of guilt is recorded in a language he understands that it was true. The trial court thereafter informed the Appellant what the sentence for count I would be. Once the prosecution read out the facts, the Appellant thereafter indicated the facts were true.
  2. The Respondent also submitted that provisions of Section 207 (1) and (2) of the Criminal Procedure Code were followed. Following the authorities quotes above, the trial court also took further caution to explain to the Appellant the gravity of the offence and the sentence he would face would he wish to plead guilty.
  3. The Respondent further submitted that since the conviction and sentence of the Appellant arises from his plea of guilty, Section 348 of the CPC bars appeal from subordinate courts where an accused was convicted upon of guilty except on the extent and legality of sentence by providing that:

“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent and legality of the sentence.”

  1. In the case of Olel v Republic [1989] KLR 444, it was held that:-

"Where a plea is unequivocal, an appeal against conviction does not lie. Section 348 of the Criminal Procedure Code (cap 75) does not merely limit the right of appeal in such cases but bars it completely."

  1. That Odunga J, in Anthony Muthonga Munene v Republic [2022] eKLR stated that:

“It follows that the appellant is, by virtue of this section, and authority, barred   from challenging the conviction and his only recourse was to challenge the extent or legality of the sentence imposed on him by the trial court. That bar, in my view only operates where the plea is unequivocal."

  1. The Respondent submitted that in this instance the Appellant's plea was unequivocal and thus is barred from appealing against conviction. This ground of appeal should therefore be disregarded and should fall.

Analysis and determination

  1. I have carefully perused the trial court record, the grounds of appeal and the submissions filed by the parties as well as the authorities cited. In my considered view the two grounds of appeal raised in the Appellant’s Memorandum of Appeal will form the issues for determination by this court.

i.  Whether the trial magistrate erred by explicitly not explaining to the Appellant the consequences of the plea of guilt

  1. I have noted that the Appellant was unrepresented during the trial and that one of his grounds of appeal was that the plea he entered was equivocal. To ensure that the Appellant was accorded a fair trial in accordance to Article 50 of the Constitution of Kenya, 2010, I shall relook at the plea process in the trial court.
  2. The process of plea taking is provided under Section 207(1) and (2) of the Criminal Procedure Code which is cited under the Respondent’s submissions hereinabove.
  3. I will set out the proceedings as shown on the trial court record on plea taking in this matter as follows:

Before: D. N Sure (PM)

S/C: Ms Koinet

C/A: James/Esther

Interpretation: ENG/KISW/KIKAMBA

The charges were read over to the Appellant and he stated in Kiswahili:

Main: It is true

Alternative: N/a

Count 2:it is true

  1. Plea of guilty was entered by the trial Magistrate.
  2. The record further shows that the Appellant was informed that the sentence in Count 1 will be 10 years in line with the Sexual Offences Act.
  3. The facts were that on 30/9/2023 at around 0500 hours the complainant SMN (name withheld) left her house and went to a nearby clinic at Koma to get anti-acid medicines for the heartburn. On return and while entering the gate, the Appellant confronted her from the back. He strangled her and pushed her to the ground. the Appellant removed her pants. The complainant tried to resist but the Appellant was strong. The Appellant caused his penis to penetrate her vagina without consent. After the incident the Appellant ran away. The complainant reported to her mother who took her to the hospital. They reported at the police station. The scene was visited. The P3 Form- PExb.1 and PRC Form-PExb.2 were filled. The Appellant was arrested and taken to the Koma police post. Sgt. Mukambo took his fingerprints. The Appellant for unknown reasons managed to run away. The police gave chase and with the help of the public they re-arrested the Appellant who was later charged before the court.
  4. The Appellant is said to have stated “the facts are true”
  5. The Trial Magistrate then convicted the Appellant of the charges on his own plea of guilty.
  6. Mitigation shows that the Appellant accepted the charges and prayed to be forgiven as he would not repeat the offence.
  7. The Prosecuting counsel invited the Trial Magistrate to impose the minimum sentence in line with the Law noting the nature of the offence and that the complainant would be affected by the experience for the rest of her life.
  8. In her ruling, the Trial Magistrate stated that she had considered the mitigation and the question posited to the Appellant severally and he had agreed with the charges of raping the complainant without her consent. The Trial Magistrate stated further that she had considered the circumstances of the offence and in her view the Appellant was a predator and a danger to women in general. The Appellant was thus sentenced to 10 years in jail for count 1 and 1 year in jail for count 2.
  9. From the trial court proceedings and I have noted that the Appellant took plea on 9/10/2023. The Coram shows that the interpretation was English, Kiswahili and Kikamba. The language the Appellant understood and preferred was not recorded. All that is shown is that the gravity of the sentence was explained to the Appellant and the Charges were read over to him and he stated as follows in Kiswahili: Main-Its is true, Alternative-N/a, Count 2-it is true.  In fact, this court is struggling to fathom the response to the alternative Count. It is not disclosed what N/a stands for. Is it “No answer”, “Not Answered”, “Not again”?. The Appellant’s own words that he stated in Kiswahili were not recorded by the trial court.
  10. The Charge Sheet is shown to be in English language and it being a crucial document in criminal proceedings, it contains the Charges and Particulars that ought to have been read to the Appellant in a language he understood. It is therefore not clear whether the same was read to him in English, Kiswahili or Kikamba after which the Appellant responded to in Kiswahili as purported.
  11. In addition, I note from the proceedings that the Appellant was informed that the sentence in Count 1 will be 10 years in line with the Sexual Offences Act.

This court finds this information to have been ambiguous and unclear particularly to the Appellant who would not have the legal knowledge and understanding on the provisions of the Sexual Offences Act. He could therefore not understand what “Sentence will be 10 years” meant without clear explanation. The trial court did not clearly inform the Appellant that the 10 years were the mandatory minimum imprisonment period he was to serve upon him pleading guilty.

  1. Apart from the above ambiguous information, the record does not show whether the Appellant was at all warned and that warning captured on record, that the offence he was about to plead to carried a prison sentence of not less than fifteen years.
  2. As pointed out, the Appellant had no legal representation and the trial court ought to have taken steps to ensure that the Appellant understood every element of the charge and the facts read out to him. He also ought to have been warned, and that warning captured on record, that the offence he was about to plead to carried a an imprisonment sentence of not less than fifteen years. In my view, extra caution includes the question as to whether or not the facts as read out are true and whether the accused person would wish to make any comment. In fact, an accused person should be asked what he means by saying that the charge read to him is true. His explanation should then be captured on the record so as to form part of his plea. From the record, it is apparent that the Appellant was just but a lad aged 24 years and the trial court ought to have gone the extra mile to ensure he understood the consequences of entering a plea of guilty.
  3. On the whole, I find that the plea taken at the trial court was equivocal.
  4. See  Simon Gitau Kinene v Republic [2016] eKLR where the court held that there was need in the circumstances of the case for the court to take the initiative to warn the Appellant who was appearing in person on the gravity and dire consequences of the offence that he faced.

ii) Whether the learned trial magistrate erred in law by sentencing the Appellant by virtue of the minimum mandatory sentences espoused in the Sexual Offences Act.

  1. The Appellant was convicted of the charges on his own plea of guilty. The Appellant was thus sentenced to 10 years in jail for Count 1 and 1 year in jail for Count 2. Section 3 (3) of the Sexual Offences Act gives the sentence for the offence of rape is imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life. Therefore, the sentence that was imposed by the trial court was the only available lawful sentence in the circumstances. Based on my finding under issue i) above, I will not say much on the issue of minimum mandatory sentence.
  2. From my appreciation of the proceedings above, it is my finding that the trial court failed to comply with all the requirements and proper procedure in taking the Appellant’s plea and in conclusion I order as follows:-
  3. The appeal is allowed.
  4. The sentence imposed on the appellant is set aside.
  5. There shall be a retrial of the Appellant before another Magistrate with jurisdiction at the Kangundo Law Courts.
  6. The Appellant shall be remanded at Kangundo Police Station, and be produced before the Chief Magistrate’s Court Kangundo within two (2) days of this ruling for retrial.

It is so ordered.

JUDGMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 13TH FEBRUARY 2025.

NOEL I. ADAGI

        JUDGE

DELIVERED VIRTUALLY ON TEAMS  AT MACHAKOS THIS 13TH  FEBRUARY 2025.

In the presence of :

In person..................................... for Appellant

Ms. Agatha.................................. for Respondent

MillyGrace.............................. Court Assistant

    RODGERS MULI MUNYAO VS The Republic RODGERS MULI MUNYAO VS The Republic