Levi Masika Masai v Republic [2022] KEHC 2526 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

CRIMINAL APPEAL NO. 102 OF 2020

LEVI MASIKA MASAI……………………...…………APPELLANT

VERSUS

REPUBLIC……………………………………....……RESPONDENT

(Being an appeal from the judgement and sentence of Hon. C.M. Wattimah, SRM, dated 9th June, 2020 in the SRM’s Court at Sirisia, in Sexual Offence Criminal No.15 of 2020, Republic vs Levi Masika Masai)

JUDGEMENT

The appellant has appealed against his conviction and sentence of teen (10) years imprisonment in respect of the offence of attempted defilement contrary to section 9 (1) (2) of the Sexual Offences Act No. 3 of 2006.

In this court the appellant has raised nine grounds of appeal in his petition of appeal.

In ground 1 the appellant has stated that he is a first offender and he is remorseful.

In ground 2 he stated that he is a lay man and was forced to plead guilty.

In ground 3 the appellant has faulted the trial court for convicting him on speculation and contradictory evidence of the prosecution.

In ground 4 the appellant the trial court in relying on fabricated medical and birth certificate evidence to convict him.

In ground 5 he has prayed that he be furnished with a copy of the record of appeal to enable him adduce more grounds.

It is clear from the foregoing grounds that the real issue in the appeal is whether his plea of guilty was unequivocal; which issue appears in ground 2.

After outlining the statement of facts, which the appellant accepted as being correct he was convicted and sentenced to ten years imprisonment. The P3 form that was produced as an exhibit showed that the complainant sustained pain to the hip joint and the hymen was intact.

It is the law that the appellant should have been informed by the court that he was liable to imprisonment to a minimum sentence of ten years imprisonment; before convicting him. I find that the plea of guilty of the appellant was unequivocal in that he was not informed of the statutory penalty that is provided for before an order of conviction was recorded. See Elijah Njihia Wakianda v Republic, Court of Appeal sitting at Nakuru, in Criminal Appeal No 437 of 2010 (2016) e-KLR. In view of the foregoing the applicant’ plea of was equivocal. It therefore follows that the trial of the appellant was fatally defective.

In the premises, I hereby quash both the conviction and sentence imposed upon the appellant.

The only issue left for consideration is whether I should order a re-trial of the appellant.

One of the main issues to take into account as to whether a re-trial should be ordered is whether the available evidence if believed might led to a conviction. See Braganza v R (1957) EA 152. It is not the only consideration. Others include the period the appellant has been in custody and the circumstances of the case.

The appellant has been in both pre-trial and post judgement custody of about one year and eight months. Additionally, the complainant sustained trauma injuries and pain.

After taking into account the period the appellant has been in custody and the circumstances of the case, I find that an order for a re-trial will not serve the interests of justice. I decline to do so.

In the premises, the appellant’s appeal succeeds with the result that the appellant is hereby ordered set free unless he is held on other lawful warrants.

Judgement dated, signed and delivered in open court at Nairobi through video conference this 2nd day of February 2022.

J M BWONWONG’A

JUDGE

In the presence of:-

Mr. Kinyua: Court Assistant

The appellant – present in person

Ms Kimaru for the Respondent