Haron Kibet Rutto v Republic [2017] KEHC 265 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL APPEAL NO. 50 OF 2016

HARON KIBET RUTTO....................APPELLANT

VERSUS

REPUBLIC.......................................PROSECUTOR

(Appeal from the Conviction of the Principal Magistrate’s Court at Eldama Ravine Hon. M. Kasera – Principal  Magistrate delivered on the 1st March, 2016 in CMCR Case No.209 of 2016)

JUDGEMENT

The appellant HARON KIBET RUTTO had been arraigned in the lower court on 29/2/2016 facing a charge of DEFILEMENT CONTRARY TO SECTION 8(1) as read with SECTION 8(3) OF THE SEXUAL OFFENCES ACT.

The appellant pleaded guilty to the charge. Thereafter on 1/3/2016 the facts were read out. The appellant maintained his plea of guilty. He was then convicted by trial court and was sentenced to serve twenty (20) years imprisonment.

I have carefully perused the proceedings in the trial court. The offence of Defilement is a serious offence and a plea of ‘Guilty’has grave consequences as the offence attracts hefty mandatory minimum sentences.

In those circumstances it would have been prudent for the learned trial magistrate to alert and warn the appellant of the consequences of his guilty plea. The plea cannot be said to have unequivocal when there is no indication that the appellant fully understood and comprehended that he faced a mandatory term of imprisonment as a consequence of such plea.

In the circumstances the appellant’s conviction cannot be said to have been sound. In view of the serious nature of the offence and given that the appellant has only served about 1½ years of a possible 20 year sentence, I am of the view that a retrial could not be unduly prejudicial.

I therefore quash the appellant’s conviction and subsequent 20 year term of imprisonment. I direct that the accused be produced before the Principal Magistrate at Eldama Ravine Court for a fresh plea to be taken. The trial to proceed afresh before another magistrate in the said station. It is so ordered.

Dated and delivered in Nakuru this 2nd day of October, 2017

Mention on 9/10 2017 before Eldama Ravine Court for a fresh plea to be taken.

Maureen A. Odero

Judge