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JudgmentSHADRACK MUTISYA MUSAU VS The Republic12 min read

SHADRACK MUTISYA MUSAU VS The Republic

High Court at Makueni High Court · · Matheka, Teresia Mumbua


  1. Shadrack Mutisya Musau was charged with the offence of threatening to kill c/s 223(1) of the Penal Code. It was alleged that on the 12th December 2022 at Kanyungu area in Kibwezi sub county Makueni County without lawful excuse uttered the threatening words in Kiswahili language “nitakuua” which interpreted in English means “I will kill you” threatening to kill Josphine Kambua Musau while armed with a panga
  2. The appellant was arrested on 13th December 2022 and took plea on the 14th. When the charge was read to him he pleaded guilty and told the court” Naomba mama yangu msamaha”.
  3. The facts of the charge were that

“On 12th December 2022 at 10:00PM, the complainant was in her house with her husband when the accused person got into the house and you knocked the door, she was it was you. You had a panga and you said you would kill everyone in the compound. Your sister woke up, approached the accused and you told her you wanted to kill your mother. She called for help. Neighbors came and the accused was arrested and charged.”

  1. The appellant pleaded guilty to these facts saying “maelezo ni ya ukweli”. He was convicted on his own plea. The prosecution submitted that he was a first offender. In mitigation he told the court “Naomba msamaha sitarudia. Naomba mama msamaha”
  2. The court sought a pre-sentence report which was filed by PACs on 22nd December 2022. It emerged that the offender was the 37-year-old, 1st born son in a family of four: two sons and two daughters. However, he felt neglected by his parents, felt that they were not supporting him as much as they supported his sisters. He blamed it on his parents especially his mother. His mother was tired of his unruly behavior. The Probation and After Care Services officer was of the view that the offender was not remorseful and was a danger to his mother and other family members.
  3. The learned trial magistrate was persuaded of that position and sentenced him to 5 years in jail.
  4. Aggrieved, he, through the firm of P M Mutuku & Co Advocates, filed, this appeal, seeking orders inter alia that the sentence be reviewed and /or set aside and the appellant’s case be reinstated for full hearing and determination on the merits, the conviction be quashed and the sentence be set aside and the appellant be set at liberty; on the following grounds; That the learned trial magistrate erred in law and fact;
  5. By entering a plea of guilty against the appellant when it was clear that he did not unequivocally plead guilty to the charge and the particulars of the charge
  6. By failing to read out the charge to the appellant and recording his replies to the same
  7. By not indicating the appellant’s plea to the charge and the particulars of the charge in his own words hence rendering the entire proceedings leading to the conviction and sentence null and void
  8. By not stating on record the preferred language of the appellant during plea taking process or whether there was specific interpretation of the language the appellant was comfortable with this rendering the process inadequate for want of conformity with the law.
  9. By not including on the record whether the applellnat understood the process as the appellant was unrepresented
  10. By taking the appellants response to the facts “maelezo ni ya ukweli” as a plea of guilty as to the charge and particulars of the charge, which falls below the threshold that the accused person is to plead to all the elements of the charge separately.
  11. By convicting and sentencing the appellant on an unequivocal plea
  12. By not warning the appellant of the consequences of pleading guilty nor the seriousness and magnitude of the offence he was facing prior to recording the a plea of guilty.
  13. In that the sentence that was meted out was excessive and harsh as he was a first offender
  14. In that the conviction and sentence of the appellant was rushed in that no probation officer report or victim impact statement was produced to assist the court in coming to a conclusion on how to sentence the appellant or prefer ADR of the matter.
  15. The appellant’s counsel had also filed an application through a Notice of Motion dated 24th and filed on 31st January 2023 under sections 356 and 357 of the Criminal Procedure Code, Articles 49(1)(h),50(2) (o)165 of the Constitution seeking inter alia a stay of the Judgment and the sentence of 5 years and ball pending appeal. The main grounds were that there was apprehension that the appellant would have served a substantial portion of his sentence, that his appeal had overwhelming chances of success, that the appellant had HIV& AIDs and would not receive proper medical care while in custody. He supported the application with his affidavit sworn on the 24th January 2022, and annexures including a Patient appointment card.
  16. It was agreed between parties that it was expedient that the substantive appeal be argued and parties fled submissions.
  17. The submissions by counsel were that, based on the facts “the question one asks if the complainant was with her husband in the house what action did the husband take? We are only told that the complainant called for help and neighbors came. The Complainant being the mother of the appellant it could have been proper for the learned trial magistrate to ask for a Probation Officer’s Report before sentencing the appellant”
  18. The state through Mr. Lucas Tanui filed their submissions opposing the appeal on the ground that the record was clear that the appellant understood the charges facing him and sought forgiveness from his mother. He clearly understood and participated in the proceedings. With respect to the sentence, that under s. 223(1) a person convicted is liable to imprisonment for 10 years. The appellant was sentenced to 5 years, that the court took into account that he was a first offender.
  19. I have carefully considered the submissions by each party and the record. It is unfortunate that the appellant’s counsel did not address all the grounds of appeal. The issue for determination is whether the appeal has any merit. To determine that we must look at the charge and each ground of appeal.
  20. Section 223 of the Penal Code provides

Threats to kill

(1) Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years

  1. Most of the grounds of appeal relate to the record it would be prudent to look at each ground of appeal vis a vis the record.
  2. The duty of the court on a first appeal is settled. I will reconsider the evidence vis a vis the appellant’s complaint that the learned trial magistrate erred in law and fact in the following manner.
    1. By entering a plea of guilty against the appellant when it was clear that he did not unequivocally plead guilty to the charge and the particulars of the charge: The law on taking plea was laid down in the classic case of  Adan v Republic [1973] EA 445, where 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 was 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.”

In this case on the face of it the learned trial court followed the technicalities of this procedure

    1. By failing to read out the charge to the appellant and recording his replies to the same: I find that the charge was read and the responses clearly recorded
    2. By not indicating the appellant’s plea to the charge and the particulars of the charge in his own words hence rendering the entire proceedings leading to the conviction and sentence null and void: : I find that the responses of the appellant are on the record in his own words in Kiswahili
    3. By not stating on record the preferred language of the appellant during plea taking process or whether there was specific interpretation of the language the appellant was comfortable with this rendering the process inadequate for want of conformity with the law.: : I find that The record shows clearly that the language of interpretation is Kiswahili and the appellant’s responses are recorded in Kiswahili
    4. By not including on the record whether the appellant understood the process as the appellant was unrepresented: : I find that The record clearly indicates that the appellant understood the process.
    5. By taking the appellants response to the facts “maelezo ni ya ukweli” as a plea of guilty as to the charge and particulars of the charge, which falls below the threshold that the accused person is to plead to all the elements of the charge separately.: : I find that The particulars are fairly straight forward, the facts are brief: I have reviewed the facts as presented by the prosecution and recorded by the court. They speak about a complainant and her husband. It is the complainant who is stated to have seen the appellant armed with a panga but there is nothing in the facts stating that the appellant issued a direct threat to this complainant as is stated in the particulars of the charge. There is nowhere in the facts where the prosecutor states that the appellant uttered the words ‘nitakuua’ to this complainant or whether the person named in the charge sheet is indeed the mother. It is stated in the facts that the appellant told his un named sister that he wanted to kill his mother. The facts also make reference ‘the accused’ and ‘you’ the appellant. It is confusing as on its face it appears as if there were two persons. What is crucial however is that the facts as read do not align with the particulars of the charge. The court needed to have sought clarification as to what the appellant was pleading to when he said maelezo ni ya kweli-
    6. By convicting and sentencing the appellant on an unequivocal plea: : I find that It is my view that from the foregoing the plea was unequivocal
    7. By not warning the appellant of the consequences of pleading guilty nor the seriousness and magnitude of the offence he was facing prior to recording a plea of guilty: : I find that The warning is not there. In the current Constitutional dispensation, it is only fair and just that an accused person who is unrepresented and is pleading guilty to a serious offence and especially where his liberty will definitely be at risk, be warned of the consequences of pleading guilty to that offence. It is a tenet of fair trial as he will not have had legal counsel.
    8. In that the sentence that was meted out was excessive and harsh as he was a first offender: While I acknowledge the discretion of the trial court to mete sentence, looking at the facts as presented, the Sentencing Guidelines and the fact that the appellant was a first offender, and 10 years being the maximum sentence provided by law, 5 years’ imprisonment was on the higher side.
    9. In that the conviction and sentence of the appellant was rushed in that no probation officer report or victim impact statement was produced to assist the court in coming to a conclusion on how to sentence the appellant or prefer ADR of the matter. There is a Pre-sentence report on the file with a victim impact statement. According to the report , the mother of the appellant was the victim. However, again the report did not speak to the facts of the case as there were several victims: Nevertheless, the court considered the report before meting out the sentence. This ground raises a serious issue, the duty of the court as provided for under Article 159 of the Constitution to do more to ensure real justice is meted to the parties, especially in this era of STAJ. Taking into consideration the relationship between the appellant and the complainant, the circumstances of the offence, it may have been necessary to try a reconciliatory approach that would address the underlying issues and seek to restore the family ties, while resolving the dispute. This is more so when the appellant states that he feels rejected by his mother and unsupported unlike his sisters. A long jail sentence may just allow these feelings to simmer into something more sinister, hence the need for a different approach without compromising the rights of the victim.
  1. Having found that the plea was unequivocal, the appeal is allowed, the conviction cannot stand and the same is quashed and the sentence set aside as based on a defective charge.
  2. So what should happen next? Counsel for the appellant was not opposed to a retrial.  In Ahmed Sumar v R [1964] EA 483 the East Africa Court of Appeal held that:

“…in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficient of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered”

  1. See also Pius Olima & another v Republic [1993] eKLR where the Court of the Appeal held the view that that a retrial may be ordered where the original trial, is defective, if the interest to 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; and also Laban Kimondo Karanja &2 others v Republic [2006] eKLR where the Judge held

“In general a retrial will be ordered only when the original trial was illegal or defective, and from the particular facts and circumstances of the case, the appellate Court, or the court on revision, is of the opinion that on a proper and judicious consideration of the admissible or potentially admissible evidence, a conviction might result, and further that the court is satisfied, not only that the interests of justice require the order for a retrial to be made, but also that such an order when made is not likely to cause injustice to the accused person.”

  1. It is my considered view that this is a suitable matter for retrial in the interests of justice. Being one of the prayers sought by the appellant he will not suffer any prejudice.
  2. The matter is remitted to the SPM’s Court Makindu for retrial before any other magistrate other than the one who made the orders subject of this appeal.
  3. The appellant be produced before the court within 24 hours hereof for plea and directions on the hearing and determination of his case.
  4. In the circumstances the application for bond be determined by the trial court.


    SHADRACK MUTISYA MUSAU VS The Republic SHADRACK MUTISYA MUSAU VS The Republic