Ishmail Shinyaka v Republic [2017] KEHC 3087 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL APPEAL NO. 121 OF 2016

ISHMAIL SHINYAKA…………………….………...APPELLANT

VERSUS

REPUBLIC………………………………………….DEFENDANT

(An appeal from the decision of Hon. J. Ong’ondo, Principal Magistrate in Kakamega CMC Cr.C.No.4385 of 2016 delivered on 30th November, 2016)

JUDGMENT

1. The appellant herein and another not before court were charged with the offence of burglary and stealing contrary to sections 304(2) and 279(b) of the Penal Code. The particulars of the offence were that on the night of 31st day of August 2016 at Lutonyi area in Kakamega Central District within Kakamega County, the two broke and entered the dwelling house of Rajab Muhanda Ali with intent to steal therein and did steal two mobile phones and cash money of Ksh.700/= the property of the said Rajab Muhanda.

In the alternative the two were charged with handling stolen goods contrary to section 322(1)(2) of the Penal Code.

2. The two appeared in court on 28th November 2016.  The charge was read out to them.  The appellant herein admitted the main charge.  The court however entered a plea of “not guilty.”  The prosecutor then sought for another date for facts as he did not have the exhibits in court.  The matter was adjourned to 30th November, 2016.  Come that day, the prosecutor proceeded to give the facts.  The appellant admitted the facts.  He was convicted of the offence of burglary contrary to section 304(1)(2) of the Penal Code and sentenced to serve five years imprisonment.  He was aggrieved by the decision of the trial magistrate and has now appealed against both conviction and sentence.

The grounds of appeal are that:

1. The trial magistrate’s decision was arrived at in a cursory and perfunctory manner and was biased, unjust, and undefensible and has resulted in a miscarriage of justice.

2. The plea entered by the accused person was not unequivocal.

3. The trial magistrate erred in fact and law by convicting the appellant which conviction is vitiated by a gap in the evidence and defects in the prosecution case hence unsafe.

4. The sentence imposed against the appellant was unreasonably excessive and vindictive in the circumstances.

5. The trial magistrate erred in law and in fact by failing to indicate the language in which the plea was taken.

The state opposed the appeal.

3. The facts read out in court were that on the 31`st August 2016, the house of Rajab Muhanda was broken into and two mobile phones and cash Kshs.700/= were stolen.  That the complainant reported to the police.  That the phones were tracked and one phone was found while in the possession of the appellant’s co-accused one Harrison Nambale.  The appellant’s co-accused told the police that the phone had been given to him by the appellant.  The appellant was then asked whether he admitted the facts and he said that the facts were true.  The court then convicted the appellant on his own plea of guilty and the prosecutor then said that the appellant was a first offender.  The appellant mitigated and said that he was indeed a first offender and that he was sorry.  The court then made remarks that the offence was serious and sentenced the appellant to serve 5 years imprisonment for the offence under section 304(2) of the Penal Code.

SUBMISSIONS:

4. The advocates for the appellant, J.J. Khayumbi & Co. Advocates, submitted that the language the plea was taken was not stated in the proceedings.  That it is not clear from what language the interpretation was being done.  That it is not clear whether the appellant understood the proceedings.  That article 50(2) of the Constitution of Kenya 2010 requires the charge to be read out to an accused person in a language that the accused understands.  That if the language is not indicated the accused cannot be said to have been given a fair hearing.  That section 198 of the Criminal Procedure Code requires the language to be interpreted but in this case there was no interpretation.

5. The advocate submitted that there is no indication in the court’s record whether the plea of guilty was entered immediately after the charge was read out to the appellant.  More so that the facts read out were not in tandem with the charge.  That the facts did not disclose the time that the offence was committed which time is crucial under section 304(2) of the Penal Code.  That the appellant was not mentioned as the person who broke into the house.  That he is only mentioned to have given the phone to his co-accused.

6. The prosecution counsel on his part submitted that the court record indicated that the interpretation was done in Kiswahili language.  That the record indicates that the accused replied to the charge in the said language.  That the record indicates that the facts were read two days later on 30th November 2016.  That the appellant therefore had ample time to change plea.  That on the said date the record indicates that translation was in Kiswahili language.  That the appellant understood Kiswahili and therefore that the plea was unequivocal.

7. The prosecution counsel further submitted that the facts revealed that the appellant was found in possession of recently stolen property.  That he was properly convicted of the offence of burglary contrary to section 304(2) of the Penal Code.  That burglary is committed at night.  That the maximum sentence for the offence of burglary is 7 years.  The appellant was sentenced to serve 5 years imprisonment which was lenient and should be enhanced to 7 years.

8. The prosecution counsel submitted that if there was any discrepancy in the manner the plea was taken, this can be curved by section 382 of the criminal Procedure Code.  That the appellant can only appeal against the severity of the sentence because he pleaded guilty to the charges.

9. Mr. Khayumbi responded that the issue of the time that the offence was committed cannot be curved by the provisions of section 382 of the Criminal Procedure Code.

DETERMINATION:

10. The manner in which pleas should be taken was stated in the case of Adan  vs  Republic(1973) EA 445 at page 446 where the court of appeal gave the guide as follows:

“When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand.  The magistrate should then explain to the accused person all the essential ingredients of the offence charged.  If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty.  The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts.  If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of plea to “not guilty” and proceed to hold a trial.  If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence.  The statement of facts and the accused’s reply must, of course, be recorded.”

11. The languages of the court are recorded in the proceedings as English/Kiswahili.  The record indicates the language of interpretation as Swahili language.  The record indicates that the appellant replied to the charges in Kiswahili language.  On the 30th November 2016, the court record indicates that the language of translation was Kiswahili language.  After the facts were read to the appellant he replied in Kiswahili language and said that the facts were true.

12. From the foregoing there is no doubt that the proceedings were conducted in English language that was interpreted into Kiswahili language.  The appellant understood Kiswahili language.  There is no substance in the argument that the proceedings were conducted in a language not understood by the appellant.

13. The next question is whether the facts disclosed an offence against the appellant.  The appellant was charged with the offences of burglary and stealing.  There are two offences contained in the charge:

(1)  Burglary contrary to section 304(1) & (2) of the Penal Code; and

(2)  Stealing contrary to section 279(b) of the Penal Code.

14. Section 304 of the Penal Code distinguishes the offence of burglary and house breaking.  Burglary connotes the offence of breaking committed at night time while house breaking connotes the offence of breaking committed at day time.  In this case the particulars of the charge indicated that the offence was committed at night.  However the facts read out to the appellant did not disclose the time that the offence was alleged to have been committed.  It is therefore not clear from the proceedings whether the appellant was admitting the offence of burglary or house breaking.  The prosecution should have made it abundantly clear in the facts the time the offence was committed.

15. Though the appellant faced a charge of burglary and stealing, the court only convicted him of the charge of burglary.  The sentence meted out was only for the offence of burglary contrary to section 304(2) of the penal code.   There is no indication as to what happened to the charge of stealing contrary to section 279(b) of the Penal Code.  Where an accused person is charged with the offences of burglary and stealing he should be convicted of two limbs: one for burglary and the other one for stealing.  It was a misdirection on the part of the magistrate to sentence the appellant of only one limb of the offence and leave the other limb of the offence unpunished.

16. The facts revealed that the appellant was found in possession of recently stolen property.  However, the facts did not indicate as to whether the appellant admitted to having broken into the house and stealing the goods or whether he admitted to having received the phone with the knowledge that it was stolen.  Since the appellant was facing an alternative charge of handling stolen goods, it was the duty of the trial court to ascertain from the appellant whether he was admitting breaking into the house and stealing the goods or handling stolen goods having knowledge that they were stolen.  The facts given out by the prosecution did not explain that.  The court seems to have assumed that the appellant is the one who broke into the house without any facts being let to indicate so.

17. A plea should always be unequivocal.  In the case of Simon Gitau Kinene vs Republic (2016) eKLR Ngugi J had the following to say on a plea:

“I do not think that a guilty plea should be left to any deductions or conjecture. It should be clear, unambiguous and unequivocal. It shall be even more so when the accused faces a serious charge capable of attracting custodial sentence.”

In this case I cannot say that the plea was clear, unambiguous and unequivocal.  The facts did not disclose the exact offence that the appellant committed.  The facts did not reveal whether the appellant broke into the house and stole the goods or whether he handled stolen property.  The plea was thereby unequivocal.  An unequivocal plea cannot be cured by the provisions of section 382 of the Criminal Procedure Code..

18. In the foregoing, the appeal is allowed.  The question is whether the court should order a re-trial.

A re-trial will only be ordered where the interests of justice so require and if it is unlikely to cause injustice to the appellant.  In Muiruri vs Republic (2003) eKLR 552, the Court of Appeal stated the following:-

“(1)    Generally whether a re-trial should be entered ornot must depend on the circumstances of the case.

(2) It will only be made where the interests of justice require it and if it is unlikely to cause injustice to the appellant.  Other factors include illegalities or defects in the original trial, length of time having elapsed since the arrest and arraignment of the appellant; whether the mistakes leading to the quashing of the conviction were entirely the prosecution making or not.”

19. In Opicha vs Republic (2016) eKLR, the Court of Appeal held that:-

“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 re-trial should be ordered, each case must depend on its particular facts and circumstances and an order for re-trial should only be made where the interests of justice require it.”

The appellant herein has served almost one year of the sentence imposed on him.  The interests of justice in the circumstances of the case do not call for a re-trial but for complete acquittal.  In the premises the conviction against the appellant is hereby quashed and the sentence set aside.  The appellant is set at liberty unless lawfully held.

Delivered, dated and signed at Kakamega this 5th day of October, 2017.

J.NJAGI

JUDGE

In the presence of:

Khayumbi for appellant

Juma  for State

George  court assistant

Appellant   present

14 days right of appeal