Ngumbao Mjori v Republic [2018] KEHC 70 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL APPEAL NO.150 OF 2017

NGUMBAO MJORI ..................................................APPELLANT

VERSUS

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

JUDGMENT

1. The Appellant, NGUMBAO NJORI, has appealed against the  conviction and sentence imposed on him vide. Criminal case No 20119  of 2017 at the Municipal court in Mombasa on 28th August, 2017.

2. The  Appellant jointly with others  were charged with the offence  of  being found in a place to which persons resort  for the purposes of Drug  use contrary to section 5 (1) of the Narcotic Drugs and  Psychotropic  substances Control Act, No 4 of 1994.

The facts are that;

“On the  27th day of April, 2017 at  about 2230 HRS at  Tudor  –Mworoto area in Mombasa District within  Mombasa  County, the appellant without lawful and  reasonable   excuse was jointly with others in a  place to which person  rent for the purpose of  smoking cannabis  in contravention   of the said Act.

3. The appellant upon being arraigned in court for  pre-taking, on 28th  August , 2017 pleaded guilty whereby he was convicted and sentenced  to serve on (1) year imprisonment.

4. This aggrieved the appellant that he filed this appeal on the following  grounds (verbatim).

(a). THAT the learned  magistrate erred in law and fact by failing to  adequately and  properly take and record an  unequivocal plea of guilt  thus resulting  in an unsafe conviction.

(b). THAT the learned magistrate erred in law and fact by imposing a  sentence which was manifestly excessive and without any option of a  fine.

(c). THAT the learned trial magistrate erred in law and fact in failing  to follow due process in the trial as to accord the appellant a fair trial  and thus violating the  rights of the appellant as provided under Article  25, 47 and 50 of the Constitution  of Kenya to the extent that the whole  process  amounted to  miscarriage of justice as facts were not read out  to him and  he was not granted any chance to  mitigate and the  appellant did not fully understand the language used.

5. The background of the proceedings is that on  28. 8.2017, the appellant  jointly with others were arraigned before court  charged with the above  mentioned  offence . The  charge was read over and explained to them  and some pleaded not guilty while the  appellant and three (3) others  pleaded guilty to the offence. The prosecution  indicated to court that  the facts of the case were  “as per charge sheet” and the trial magistrate   proceeded to enter a plea of guilt for  the appellant  and the other  3  accused persons. She then convicted and sentenced them to serve  one (1) year  imprisonment.

6. The  Appellant’s   counsel submitted that the  plea of guilt which was  entered by the trial court was equivocal as the appellant was  denied  the chance to  interrogate the facts of  the case which were not read for  him.

7. He also submitted that the sentence   passed against  the appellant was  harsh and excessive since the trial  magistrate failed to consider the    option of fine  but proceeded to sentence him to a jail  term.

8. He further submitted that the accused person was never accorded a  chance to submit, hence this was not put into  consideration when the  sentence  was passed against him.

9. Further, the counsel submitted that the language used during plea  taking  was not  recorded hence it is not known whether the same was  taken in a language  the appellant  understands.

10. The counsel concluded by submitting that the appellant was denied fair  trial as provided for by the Constitution under Article 25, 47, and  Article 50.

He also cited several authorities to support his grounds of appeal.

11. The state, through M/s Ocholla conceded to the appeal by admitting  that the plea was equivocal. That the language used by the court was  not indicated and neither were the facts of the offence read out  to the  accused. They added that they would not insist on a re-trial since the  appellant was about to complete his sentence.

12. I have read through the proceedings in line with the submissions by  both counsel.

It is instructive to note that the procedure of taking plea is provided for  under section 207 of the Criminal Procedure Code as follows;

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 asnearly 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.

13. The procedure was properly outlined and set out in the case of ADAN  VRS R (1973) 446 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 word, and  then  formally enter a  plea of guilty. The magistrate should next ask the  prosecutor to state 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”.

14. This was after courts realized that the provision in the criminal  procedure code  posed a danger of accused person being convicted on  an equivocal plea  since it was  not  very  clear. It merely provides that;

“ …….his admission shall be  recorded  merely as possible  in the   words  used by him and the court  shall convict  him  and pass sentence”.

Having found that the appellant in this case was convicted and sentenced on an equivocal plea, I proceed to quash the conviction and set aside the sentence that was meted upon him.

The appellant is hereby set free, unless lawfully held.

Orders accordingly.

Judgment read, signed and dated this 20th day of March, 2018.

LADY JUSTICE D. O.CHEPKWONY

In the presence

M/s Ocholla counsel for the state

Mr Jumbale, counsel for the appellant

C/clerk- Beja