SUSAN NELIMA VS The Republic SUSAN NELIMA VS The Republic

The appellant in this matter vide a petition of Appeal dated 10^th November 2023 seeks to challenge the lower courts order on sentence of two years imprisonment.
The appellant had been charged with the offence of Subjecting a child to cruel punishment contrary to Section 153 of the Children’s Act No.29 of 2022.
The particulars were that on the 10^th June 2023 at Mirema Drive Kasarani Subcounty within the county of Nairobi being the caretaker of I.W a child aged 8 months, willfully assaulted the said child thereby causing the child to suffer injury.
The appellant was at the material time the caretaker of the child.
The matter was resolved by way of plea of bargain.
Í have closely perused the lower court record I have noted that there is no record of the charge and facts being read over to the accused as required by the law in order for her to plead after the prosecutor indicated that a plea agreement had been reached.
The record indicates that the prosecution counsel on the 18/9/2023 simply indicated to the court that there was a plea agreement entered into and that the agreement was given to the advocate.
The plea agreement was indicated to have been filed and the court simply recorded:

“Section 137 P.C complied with
Accused on oath
I agree with the terms of the P.A.
Ct.: P.A Adopted Accused Convicted on her own plea of guilty”

It does appear to this court that the accused person was not called upon to plead to the charge and respond to the facts which in my view was a fatal error in law.
The fact that there was a plea agreement did not take away the responsibility of the court under Section 137F of the Criminal Procedure Code to ensure that plea was recorded in strict compliance with the procedure set out there under.
The omission to comply with that procedure is in my view not one of those procedural omissions that can be said to be curable under Section 382 of the Criminal Procedure Code. It is a procedural flaw that can invalidate a conviction on a plea of guilt.
The record by the learned magistrate while recording the plea made reference to Section 137 of the Penal Code which was an error on the face of the record since that section has no application in the recording of a plea agreements. The relevant law being Sections 137A-O of the Criminal Procedure code.
The appellant did not raise the issue of the competence of the proceedings before the lower court but this being a court of record, the court has suo moto elected to point out that latent defect in the recording of the guilty plea in order to guide the lower courts on the need to comply with the provisions of Section 137F during the recording of plea agreements.
The procedure provided for under that section is meant to ensure that the rights of accused persons are not trampled upon through hurriedly concluded plea agreements. A slight departure from the provisions of the law would vitiate a plea agreement thus the prosecutors and judicial officers involved in the process must remain vigilant to ensure that plea agreements are recorded in strict compliance with the law so that the innocent are not convicted wrongly.
However, since the appeal confined itself to the issue of sentence only, I shall not dwell any further on the propriety of the conviction.
Turning on to the issue of sentence, it is the view of this court that the sentence of 2 years imprisonment imposed against the appellant was excessive and disproportionate in the circumstances.
The appellant having acceded to the Plea agreement the court should have extended mercy to her.
The accused having been arrested on 10/06/2023 and remanded in custody, till the date of sentencing, the trial court should have been minded under Section 333 of the Criminal Procedure Code to take into account the period already spent in custody as well as the full facts of the matter.
It is the view of this court that the sentence imposed by the court was manifestly excessive taking into account the totality of the circumstances of the case.
The appeal on sentence therefore succeeds.
In the end, the sentence of 2 years imprisonment is hereby set aside and in place thereof substituted with the period already served. The appellant is to be released from prison custody immediately.
It is so ordered.