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JudgmentThe Republic AND INNOCENT ANDATI VS6 min read

The Republic AND INNOCENT ANDATI VS

High Court at Kwale High Court · · Andayi W.F.

  1. This matter is placed before me for review of sentence under Article 50(2)(q) and Article 165(6) and (7) of the Constitution of Kenya, the Probation of Offenders Act (Cap. 64) Laws of Kenya, section 3(1) of the Community Service Orders Act (Cap. 93) Laws of Kenya and pursuant to the Directions by the Honourable the Chief Justice in Her Memo dated 19/8/2024 on decongestion of prisons.
  2. The applicant was convicted for the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code (Cap. 63) Laws of Kenya that on 6/7/2024 at Ostrich area Diani location of Msambweni Sub-County within Kwale County within the Coast region he unlawfully assaulted Matano Athman Mwasura thereby occasioning him actual bodily harm. He was sentenced to serve 2 years imprisonment.
  3. This matter comes up for review of sentence as provided for under Article 50(2)(q) of the Constitution which provides that: -

“Every accused person has the right to a fair trial, which includes the right - if convicted, to appeal to, or apply for review by, a higher Court as prescribed by the law.”

  1. In addition, Article 165(6) and (7) of the Constitution gives the High Court supervisory jurisdiction over subordinate courts as follows:

(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

  1. I have perused the trial court file proceedings forwarded to this court.
  2. I have noted that at the time of taking plea, there were no facts read to the offender as the prosecution indicated that the facts were as per the charge sheet. Those proceedings were not properly conducted. An accused person should have the benefit of being informed of all the facts constituting the charge and be required to respond thereto.
  3. The law governing plea taking in Magistrates’ Courts is section 207 of the Criminal Procedure Code (Cap. 75) Laws of Kenya which provides that:

207. Accused to be called upon to plead

(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.

(3) …

  1. Moreover, the principles governing plea taking were stated in the case of Adan vs. Republic [1973] EA 445 where the Court 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 facts relevant to sentence together with the accused’s reply should be recorded.”

  1. In mitigation, the offender stated that he acted in self-defence and that they fought and that the complainant also injured him. He asked for leniency.
  2. Clearly, the offender’s plea was not unequivocal. He ostensibly denied that he had committed the offence and at that stage the trial court ought to have reversed the plea of guilty entered earlier. Such equivocation by the offender is what then makes it mandatory that full facts of the case be read over to an accused person before a conviction is had. In P. Foster (Hallege) Ltd -Vs- Roberts (1978) 2 ALL ER 751, 754 – 755 it was held thus:

“... A court cannot accept an equivocal plea of guilty:  It … must either obtain an equivocal plea or enter a plea of not guilty.  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.”

  1. In this case, the trial court ought to have informed the accused person that it would not accept his plea of guilty as it was equivocal and if he insisted on a plea of guilty, the charge and the facts should have been put to him again or the court should have proceeded to enter a plea of not guilty.
  2. It is apparent that in the case of the offender herein, the provisions of the law and the principles as enunciated in the Adan case above were not adhered to by the trial court thereby vitiating the plea by the offender.
  3. I have considered whether or not this court should order a retrial. In Ahmed Sumar vs. R (1964) EALR 483 the Court of Appeal offered the following guidance: -

“...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 insufficiency 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. The Court went further to state that each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person.
  2. It is apparent that the mistake in the trial arose from the court not adhering to the proper procedure for taking plea as set out in the case of Adan above.
  3. The offender was sentenced to 2 years imprisonment to run from his date of arrest on 3/2/2024. So far he has served 9 months imprisonment. There remains a balance of 1 year 10 months to serve if remission by prison authorities is not factored in. If the same is considered, which is usually one third of the sentence as provided for under section 46 of the Prisons Act (Cap. 90) Laws of Kenya, then it will mean he remains with about 7 months’ in custody. The offence was one of assault causing actual bodily harm. The offender was given a custodial sentence following an unfavourable pre-sentence report.
  4. In my view ordering a retrial in this case would be prejudicial to the offender considering the nature of the offence and what he said in mitigation. The court therefore declines to order a retrial. The only avenue left is to quash the conviction and set the sentence aside which I hereby do.
  5. The offender is therefore set at liberty forthwith unless otherwise lawfully held.
  6. Orders accordingly.

Ruling, Dated and Delivered at Mombasa this 5th day of November, 2024.

ANDAYI W. F.

JUDGE

Ruling transmitted to prison authorities to be given effect immediately.


    The Republic AND INNOCENT ANDATI VS The Republic AND INNOCENT ANDATI VS