Ben Meshack Kibebe & Everline Naliaka v Republic [2016] KEHC 5861 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

CRIMINAL APPEAL NO. 77 OF 2015

(Consolidated with   Criminal Appeal No.  78 OF 2015)

(Being an Appeal  from the judgment of the Kitale  Chief Magistrate V.W. Wandera

delivered on 19th June 2015 in Criminal Case No.  2431 of 2015)

BEN MESHACK KIBEBE.......................................1ST APPELLANT

EVERLINE NALIAKA............................................2ND APPELLANT

VERSUS

REPUBLIC..................................................................RESPONDENT

J U D G M E N T

1. The 1st  appellant BEN MESHACK KIBEBE and the 2nd appellant  EVERLINE NALIAKA were  charged with the offence of Forgery of Judicial Documents Contrary to Section 351 of the Penal Code.

The particulars  of the offence are that on the 10th day of June, 2015 at unknown place within the Republic of Kenya jointly with others not before court made a  surety release order dated 27/8/2015 vide Criminal Case number 49 of 2015 in respect  of ERICK SIMIYU WANYONYI purporting it to be a genuine release order having been signed by CAROLINE MUGO Resident Magistrate in Kitale Law Court.

2. When the charge was  read out to the appellants in court, both  the 1st and the  2nd appellants pleaded guilty.  The facts of the case were read out and each of  the appellants admitted  the same as correct.  Briefly stated, the facts were that on 10/6/2015 the 1st appellant presented a Release Order in Criminal case No. 49 OF 2012 Republic Versus Erick Simiyu Wanyonyiat Kitale Farm Prison.   Upon counter checking with the court, it was found that the Release order as a forgery.  The 1st appellant  revealed that 2nd appellant was the one who  had given  him the release order. Both the 1st and 2nd appellants were arrested.   The 2nd appellant admitted having obtained the released order from a person who introduced himself   to her as a judicial officer and that she paid Kshs 5,000/- for the Release order.

3. The 1st  and 2nd appellant were convicted and sentenced to 3 ½ years each.  Both the 1st and 2nd appellants were dissatisfied with both  the conviction and sentence and appealed to this court.  Their separate  appeals were consolidated and heard as one.  The grounds of appeal can be summarized as follows:-

(a) That the appellants were not  cautioned on the consequences of pleading  guilty on a charge which was serious.

(b)  That there was no evidence that the appellants made or abetted the making of the document.

(c) That the appellants had no knowledge  that the impugned document was forged.

(d) That the facts given by the prosecution did not support the charge.

(e) That the plea of guilty was equivocal.

(f) That the sentence of 3 ½ years was harsh and excessive.

4. The state conceded to the appeal.  Both the learned counsel for the appellant and the Learned counsel for the state made oral submissions which I have duly considered.

5.  Section 207 of Criminal Procedure Code  provides for the procedure  for plea taking.   The said section of the Law does not provide for the trial court to caution the accused persons on the seriousness of the offence.  The plea was  taken in compliance with all the procedures for plea taking (See for example ADAW -V- REPUBLIC [ 1973] EA).

6. A  close scrutiny of the facts fails to disclose the role played by both  the 1st and 2nd appellants in the making of the document in question.  It is not clear from the facts if the appellants knew whether the document was a forgery or not. Indeed the mitigation by both 1st and 2nd appellant retracts the plea of guilty as each one of them appears to dispute any guilty knowledge.  The 1st appellant stated that he was only sent  to take the release order to prison while the 2nd appellant stated that she was mislead by a person who posed as a judicial officer.  The plea was equivocal.

7. The appellants have  been in  prison  for  about nine (9) months now.  Although  the Learned counsel for the state urged   the court to order for a retrial,  my view is that the appellants have substantially served the sentence.

Consequently, I decline to order for a retrial.  I allow the appeal.  The appellants are at liberty unless otherwise Lawfully held.

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B. THURANIRA JADEN

JUDGE

COURT:  Judgment dated and delivered this  17th March 2016.

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B. THURANIRA JADEN

JUDGE