' 1. The Appellant was convicted on his own plea of guilty in Nyamira Court Criminal Case No. 1370 of 2015 for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, No. 3 of 2006, and sentenced to life imprisonment.
2. He now appeals against the conviction and sentence on grounds that he was mentally challenged at the time of the trial and that the sentence was harsh and excessive.
3. The appeal is opposed. Learned Prosecution Counsel submitted that the plea was properly taken, that it was unequivocal, and that no evidence of unsoundness of mind was tendered before the trial court. Counsel further relied on section 348 of the Criminal Procedure Code, arguing that the Appellant having pleaded guilty, cannot now appeal against the conviction.
Analysis and Determination
4. I have considered the appeal in light of the trial court record, the grounds of appeal and the Respondent’s submissions in response to the appeal.
5. On first appeal from a conviction by a judge or magistrate, the Appellant is entitled to have the appellate court''s own consideration and view of the evidence as a whole and its own decision thereon. The court has a duty to rehear the case and reconsider the material before the judge or magistrate with such materials as it may have decided to admit. (See Kariuki Karanja Vs Republic [1986] KLR 190).
6. Section 348 of the Criminal Procedure Code provides 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 or legality of the sentence.”
7. The effect of this provision is that where an accused person voluntarily and unequivocally pleads guilty, he is generally barred from appealing against the conviction. His right of appeal is limited only to the legality or severity of the sentence. However, the appellate court retains jurisdiction to consider whether the plea was properly recorded and unequivocal, as an invalid plea is no plea in law.
8. The guiding principles were stated in Adan v Republic [1973] EA 445, where the Court of Appeal held that:
“The court must ensure that the charge and all its essential ingredients are explained to the accused in a language he understands, that his reply is properly recorded, and that the plea is unequivocal.”
9. It is on record that the issue of the Appellant’s mental capacity was not raised before the trial court. The record shows that the plea was taken after the charge was read and explained in a language understood by the Appellant, and he responded unequivocally. The trial court, upon satisfying itself that the plea was voluntary and clear, proceeded to convict and sentence him.
10. On appeal, the Appellant contends that he suffers from a mental illness which ought to have been considered. However, there is no medical report or psychiatric evaluation on record to substantiate this claim, which in any event has been raised for the first time at the appellate stage.
11. Section 11 of the Penal Code provides as follows:
“Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.”
12. The law therefore presumes that an accused person is sane unless credible evidence is produced to rebut that presumption.
13. The Court of Appeal in Leonard Mwangemi Munyasia v Republic [2015] eKLR stated that:
“The burden of proving insanity lies on the accused, though only on a balance of probabilities. The law presumes every person to be of sound mind unless the contrary is proved by credible evidence, usually medical.”
14. Guided by this authority, I find that there was no legal or factual basis for the trial court to order a mental assessment of the Appellant. Since no issue of unsoundness of mind was raised before the trial court, the presumption of sanity remained unchallenged.
15. The Respondent has rightly drawn attention to section 348 of the Criminal Procedure Code, which provides 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 or legality of the sentence.”
16. This provision limits the scope of appeal where a conviction follows a plea of guilty, and the record herein shows that the plea was properly taken.
17. The sentence imposed was that prescribed by law under section 8(2) of the Sexual Offences Act, which provides for life imprisonment upon conviction for defilement of a child aged 11 years or below. The sentence was therefore lawful and mandatory, and this Court has no discretion to interfere with it.
18. In the result, I find that the appeal lacks merit. The plea was unequivocal, the conviction was proper, and the sentence lawful.
19. The appeal is accordingly dismissed in its entirety.
Orders accordingly.
Appearances
Court Assistant - Orwasa
Appellant - Present in person
For the DPP - Mr. Chirchir
'
2. He now appeals against the conviction and sentence on grounds that he was mentally challenged at the time of the trial and that the sentence was harsh and excessive.
3. The appeal is opposed. Learned Prosecution Counsel submitted that the plea was properly taken, that it was unequivocal, and that no evidence of unsoundness of mind was tendered before the trial court. Counsel further relied on section 348 of the Criminal Procedure Code, arguing that the Appellant having pleaded guilty, cannot now appeal against the conviction.
Analysis and Determination
4. I have considered the appeal in light of the trial court record, the grounds of appeal and the Respondent’s submissions in response to the appeal.
5. On first appeal from a conviction by a judge or magistrate, the Appellant is entitled to have the appellate court''s own consideration and view of the evidence as a whole and its own decision thereon. The court has a duty to rehear the case and reconsider the material before the judge or magistrate with such materials as it may have decided to admit. (See Kariuki Karanja Vs Republic [1986] KLR 190).
6. Section 348 of the Criminal Procedure Code provides 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 or legality of the sentence.”
7. The effect of this provision is that where an accused person voluntarily and unequivocally pleads guilty, he is generally barred from appealing against the conviction. His right of appeal is limited only to the legality or severity of the sentence. However, the appellate court retains jurisdiction to consider whether the plea was properly recorded and unequivocal, as an invalid plea is no plea in law.
8. The guiding principles were stated in Adan v Republic [1973] EA 445, where the Court of Appeal held that:
“The court must ensure that the charge and all its essential ingredients are explained to the accused in a language he understands, that his reply is properly recorded, and that the plea is unequivocal.”
9. It is on record that the issue of the Appellant’s mental capacity was not raised before the trial court. The record shows that the plea was taken after the charge was read and explained in a language understood by the Appellant, and he responded unequivocally. The trial court, upon satisfying itself that the plea was voluntary and clear, proceeded to convict and sentence him.
10. On appeal, the Appellant contends that he suffers from a mental illness which ought to have been considered. However, there is no medical report or psychiatric evaluation on record to substantiate this claim, which in any event has been raised for the first time at the appellate stage.
11. Section 11 of the Penal Code provides as follows:
“Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.”
12. The law therefore presumes that an accused person is sane unless credible evidence is produced to rebut that presumption.
13. The Court of Appeal in Leonard Mwangemi Munyasia v Republic [2015] eKLR stated that:
“The burden of proving insanity lies on the accused, though only on a balance of probabilities. The law presumes every person to be of sound mind unless the contrary is proved by credible evidence, usually medical.”
14. Guided by this authority, I find that there was no legal or factual basis for the trial court to order a mental assessment of the Appellant. Since no issue of unsoundness of mind was raised before the trial court, the presumption of sanity remained unchallenged.
15. The Respondent has rightly drawn attention to section 348 of the Criminal Procedure Code, which provides 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 or legality of the sentence.”
16. This provision limits the scope of appeal where a conviction follows a plea of guilty, and the record herein shows that the plea was properly taken.
17. The sentence imposed was that prescribed by law under section 8(2) of the Sexual Offences Act, which provides for life imprisonment upon conviction for defilement of a child aged 11 years or below. The sentence was therefore lawful and mandatory, and this Court has no discretion to interfere with it.
18. In the result, I find that the appeal lacks merit. The plea was unequivocal, the conviction was proper, and the sentence lawful.
19. The appeal is accordingly dismissed in its entirety.
Orders accordingly.
Appearances
Court Assistant - Orwasa
Appellant - Present in person
For the DPP - Mr. Chirchir
'