SAMUEL MUTINDA KASINA VS The Republic

1. The appellant SAMUEL MUTINDA KASINA was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 24th day of May 2022 at around 1300 hrs at Mikauni Village, Kitise Sub – Location, Kitise, Kathonzweni Sub-County within Makueni County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of M.M.M, a girl aged 3 years.

2. In the alternative, the Appellant was charged with the offence of committing an Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that on the same day, at the same time and place, the Appellant intentionally and unlawfully touched the anus of M.M.M, a child aged 3 years with his penis.

3. The appellant pleaded guilty to the charge. The following facts were read to him:

1. On 24/05/2022 at around 1.00pm, the victim’s mother by name CM, left her child M.M who is aged 3 years under the care of the accused Samuel Mutinda who was their farmhand. She left them at their farm and went to house to prepare lunch. When she came back, she found the accused and the victim at the farm and they all went home. She served them lunch after which the child proceeded to sleep and the accused went away.

2. At around 5pm, the mother heard the child crying. She rushed to where he was sleeping and noticed some blood stains on the child’s shorts. Upon enquiries, the child informed her that Mr. Mutinda the accused took him to the bush when the mother had left and inserted his penis in his anus. She also noticed that there were some blood stains on the complainant’s anal area. She notified the victim’s mother and the area chief who came together with nyumba kumi elders and arrested the accused.

3. It was also discovered that the accused’s T-Shirt had blood stains on the front side behind the abdomen. The T-Shirt which is golden with grey and white stripes. The complainant was taken to Kathonzweni health hospital where he was examined. The P3 form was done and it was found he had multiple lacerations on the anal, an indication of anal penetration. I also have a PRC form filled on 23/05/2022 with the same findings as in the P3 form. I also have treatments notes for victim which I produce. The complainant is aged three years having been born on 1st October 2018. After investigations, the accused was charged with the present offence. The complainant is before the court.

4. The prosecution produced a blood stained brown short (P. Exb 1), a golden T-Shirt with grey and white stripes (P.Exb 2), P3 form (P. Exb 3), PRC form (P.Exb 4), treatment notes (P.Exb 5) and the victim’s clinic booklet (P.Exb 6).The appellant pleaded guilty to the facts he convicted on his own plea of guilty and sentenced to 20 years’ imprisonment.

5. Aggrieved by that decision, the Appellant filed this appeal on the the following grounds;

a) That he was sentenced on the case when there was no plea of guilt.

b)  That he is in dispute with the conviction and sentence imposed on him.

c) That the prosecution did not prove their case beyond reasonable doubt.

d) That the honorable magistrate overlooked the inconsistencies of the witnesses which were uncorroborated.

When he filed his submissions he argued the following grounds:

a) That the trial magistrate erred in law and fact by failing to observe that his fair trial rights were violated when the trial was conducted in a hurry without his right to be informed in advance of the evidence the prosecution intended to rely on and to have reasonable access to that evidence.

b) That the trial magistrate erred in law and fact by failing to observe that the trial was conducted in contravention of section 19 of the Oaths and Statutory Declarations Act concerned with the reception and admissibility of evidence of a child of tender years, Article 4 of the Constitution and section 2 of the SOA.

c) That the trial magistrate erred in law and fact when he presided over a trial based on illegality by admitting and considering evidence obtained through torture or inhuman or degrading treatment.

d) That the trial magistrate erred in law and fact by convicting him without considering that there was no evidence to prove penetration without which the prosecution could not prove the offence of defilement and at the same time erred in failing to consider the evidence that had been adduced by the complainant before she was declared a refractory witness.

e) That the trial magistrate erred in law and fact by shifting the burden of proof to the Appellant, misapprehending and misdirecting himself on the evidence hence arriving at the wrong conclusion; by failing to observe that the prosecution evidence was untenable, unworthy, contradictory, inconsistent and full of lies which required him to resolve the doubt in favour of the Appellant.

6. The appeal was canvassed through written submissions.

The Appellant’s Submissions

7. I have carefully perused the submissions and it is evident that they are misplaced because he submits as though he went through a full trial. This is seen through the grounds of appeal yet the Appellant was convicted on his own plea of guilt. The case did not go to trial.

eKLR

Submissions by the Respondent

8. The State, through Prosecution Counsel Victor Kazungu, identified the issues for determination to be;

a) Whether the conviction is legal

b) Whether the jail term is fair and proportionate

c) Whether this court should review or vary the sentence

9. On whether the conviction was legal, he submitted that the Appellant pleaded guilty to the charges hence has no right to appeal against conviction unless he is able to prove that the plea was equivocal.  He relied on the case of Olel -vs- R (1989) KLR 444 cited in the case of Anthony Muthonga Munene -vs-R (2022) eKLR as follows;

“Where 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 but bars it completely.”

10. He submitted that the charge was read to the Appellant in the Kiswahili language which he understood whereupon he admitted and sought for forgiveness. He contended that the Appellant would not have sought for forgiveness if he had not understood the charges. He relied on the case of Robert Bett -vs- R (2015) eKLR where the court stated;

“The facts which formed the basis of the charge, having been read to the Appellant, he is recorded to have responded: “The facts are correct”. The magistrate then proceeded to convict the Appellant based on his admission of the facts. The Appellant admitted the charge and confirmed the facts as read to him to be correct. I find that in those circumstances, the plea was unequivocal.”

11. He submitted that the plea of guilty was express and without qualification hence cannot be said to be unequivocal.  He relied on the case of P.Foster (Hallege) Ltd -vs-Roberts (1978) 2 All ER 751,754-755 where the court stated;

“For a plea to be equivocal, the defendant must add to the plea of guilty qualification which, if true, may show that he is not guilty of the offence charged. The company had added no qualification to their pleas which were therefore unequivocal...”

12. He submitted that the Appellant pleaded guilty to the charge and admitted the correctness of the facts voluntarily. That he was not induced, influenced or in any manner compelled to plead guilty to the charge. He relied on the case of Robert Bett (supra) where the court went on to state;

“I am also satisfied that the Appellant voluntarily pleaded guilty to the main charge and in mitigation sought forgiveness saying that he will not repeat the offence. I note that the Appellant had a chance, even during mitigation, to recant his plea which chance he did not utilize. I therefore dismiss his appeal on conviction.”

13. As to whether the term of imprisonment was fair and proportionate, he submitted that the penalty for defilement under section 8(2) of the Sexual Offences Act is life imprisonment. He relied on Jacob Ntoiti -vs-R (2021) eKLR where the court stated;

“The remaining question no is whether the sentence meted out to the appellant was harsh. Section 8(2) of the Sexual Offences Act provides for a mandatory minimum sentence of life imprisonment. Where the victim is aged 11 years or less…I find that since the age of the victim was established beyond any shred of doubt, the sentence was within the law.. In the end, I find the appeal to be wholly unmerited and the same is hereby dismissed.”

14. On whether the court should review or vary the sentence, he submitted that this Court should not disturb the trial Court sentence unless it is found to be illegal and manifestly oppressive. He cited the case of Benson Nkaramata Sakita –vs-R (2018) eKLR where the Court (Gitari J) held that;

“The principles upon which appellate court will act in exercising 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”

15. He also cited SKM -vs- R (2021) eKLR where the court held;

“The sentencing is the discretion of the trial magistrate. The discretion was exercised judicially in the circumstances of this case. I find no reasons to interfere with the sentence. In conclusion, I find that the prosecution proved its case beyond any reasonable doubts. This appeal is without merits and is dismissed.”

16. He beseeched this court not to review, vary or in any other way disturb the sentence of the trial court.

17. 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. In this case, that advantage is not lost as the case did not proceed to full trial.

18. I have carefully considered the grounds of appeal, the rival submissions and the entire record, the following issues arise for determination;

a) Whether the plea was unequivocal.

b) Whether the sentence is judicious.

Whether the plea was unequivocal.

19. The procedure for taking plea is provided under section 207 of the CPC  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.

20. The procedure was elaborated in the celebrated decision of 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.”

21. The record shows that on 26/05/2022, the charge and every element thereof was stated by the court to the Appellant in the Kiswahili language which he understood. Upon being asked whether he admitted or denied the truth of the charge, he replied; “It is true, I pray for forgiveness”

22. The facts, as captured in paragraph 5 above, were read to the appellant and he responded; “I admit the facts”. Consequently, the Appellant was convicted on his own plea of guilt.

23. It is evident that the procedure of recording plea was adhered to the letter and the Appellant’s admission was voluntary. Indeed, it was unlikely for the Appellant to ask for forgiveness if he did not understand what he was charged with. Evidently the plea was unequivocal hence the appeal against conviction is barred by section 348 of the CPC.

Whether the sentence is fair and proportionate.

24. Section 8 (2) of the Sexual Offences Act provides that;

“A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”

25. It is now trite that Judges and Judicial Officers have discretion in sentencing even with regard to offences where statutes provide minimum and mandatory terms. The Appellant was liable to imprisonment for life but the trial magistrate exercised his discretion and sentenced him to 20 years. The trial magistrate called for a pre-sentence report which recommended a custodial sentence on grounds of the Appellant’s safety.

26. Considering that the victim was aged 3 years at the time of the offence, the Appellant got a lenient sentence. However, the same is legal.

27. In the circumstances, I find that the appeal is without merit and the same is dismissed.

28. The conviction is sustained and the sentence is upheld.

In the presence of:

Appellant

CA Chrispol

Mr. Kazungu for state ( virtual)

Right of Appeal 14 days