Nyalenda v Republic [2023] KEHC 26415 (KLR)

Nyalenda v Republic (Criminal Appeal E001 of 2023) [2023] KEHC 26415 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26415 (KLR)

Republic of Kenya

In the High Court at Thika

Criminal Appeal E001 of 2023

FN Muchemi, J

December 14, 2023

Between

Maurice Nyalenda

Applicant

and

Republic

Respondent

Ruling

1. This is an application for revision brought under Section 362 and 364 of the Criminal Procedure Code.

2. The applicant was charged and convicted by the Chief Magistrate in Thika Criminal Case No 2959 of 2023 of the offence of selling alcoholic drinks without a license contrary to Section 7(1) (b) as read with Section 62 of the Alcoholic Drinks Control Act.

3. It is the applicant’s contention that the facts of the charge were not read to the applicant; that he did not understand the charge; that the witness statement were not supplied to him thus contravening his rights under Article 50 of the Constitution and rendering the proceedings irregular, improper and illegal.

4. It is important to note that this application was not opposed by the respondent on grounds that the plea was not unequivocal. The respondent relied on the case of Adan v Republic.

5. The record shows that the applicant appeared before Chief Magistrate Hon. Atambo on 10th July 2023 and pleaded guilty to the charge after it was read to him. The prosecutor was called upon to read the facts of the case. He said: “Facts as per charge sheet.” He then produced an inventory as Exhibit 1(1) – 18 Serial No 18100xxxxxx. The accused then said that the facts are correct and a plea of guilty was entered by the court. The court then proceeded to sentence the applicant to a fine of Kshs 80,000/= in default thirteen (13) months imprisonment.

6. The issue before this court is whether the plea was unequivocal. In the case of Micky Modi Mwangi Nyeri Criminal Appeal No 14 of 2021, the case of Adan v Republic was cited which cited the principles to be followed in taking plea in a criminal case as follows:-i.The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;ii.The accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded;iii.The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;iv.If the accused does not agree with the facts or raises any question of his guilt his reply must be recorded and change of plea entered;v.If there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused’s reply should be recorded.

7. The third principle herein states that after the accused pleads guilty to the charge, “the prosecutor shall immediately state that facts of the case and the accused must be given an opportunity to dispute or explain the facts or to add any relevant facts.”

8. In the case before me, the prosecutor did not read the facts of the case to the court. By stating that “the facts are as per charge sheet,” the prosecutor failed to fulfil his legal duty of reading the facts and therefore denied the applicant “the opportunity to dispute or explain the facts or add any relevant facts.” Even in a case where the accused changes plea, the facts that had been read in a previous occasion are required to be read afresh for the accused to admit or deny them.

9. I come to the conclusion that the court in this case did not strictly comply with the requirements of the law in taking the plea on 10th July 2023. As such the pleas was not unequivocal as required by the law. The conviction and sentence were therefore based on an equivocal plea. As such the final orders made by the honourable Chief Magistrate were flawed and must be quashed. Consequently, I hereby quash the conviction and set aside the sentence of fine of Kshs 80,000/= in default thirteen (13) months imprisonment.

10. This case is referred back to the Thika Magistrate’s Court for plea and disposal. The case will be heard by another Magistrate other than Hon. S. Atambo.

11. Any fine paid by the applicant shall be refunded.

12. It is hereby ordered.

DATED AND SIGNED AT THIKA THIS 14TH DAY OF DECEMBER2023. F. MUCHEMIJUDGE