Weldon Kipkorir Rotich v Republic [2021] KEHC 5525 (KLR)

REPUBIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

CRIMINAL APPEAL NO. 29 (E041) OF 2021

WELDON KIPKORIR ROTICH................................APPELLANT

VERSUS

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

JUDGMENT

The Appellant, Weldon Kipkorir Rotich was charged with the offence of being in unauthorized possession of Examination paper, materials  or information contrary to Section 27(1) of the Kenya National Examination Council Act.   The particulars  of the offence are that on 16th April 2021 at St. Teresa’s Bikeke Girls Secondary School in Trans Nzoia County,without lawful excuse, had in his possession  Kenya Certificate of Secondary Education 2020 Physics  Practical Paper No. 232/2 Serial number A182910119.  In the second count, he was charged with the   offence of engaging in examination malpractices contrary to Section 28(b)of theKenya National Examination Council Act.  The particulars of the offence were that on the same day and in the same palace, the Appellant without lawful authority disclosed the contents of an examination paper for Kenya Certificate of Secondary Education 2020 Physics Practical Paper No. 232/3 Serial Number A 182185 910119 through his whatsup page.  When the Appellant was arraigned before the trial Magistrate’s Court, he pleaded guilty to the charges.  The Appellant was convicted on his own Plea of Guilty.  He was sentenced to serve two (2) years imprisonment on each count. The Sentences were ordered to run consecutively.

Aggrieved by his conviction and sentence, the Applicant has filed an appeal to this court. He contends that the plea of guilty that was recorded by the trial Magistrate was equivocal.  He should not therefore have been convicted on the basis of such plea.  He stated that the charges upon which he was called to answer to were defective and could not form basis for the charges that were read to him.   He was aggrieved that the facts narrated to the court by the Prosecution did   not support the charges. He complained that the Custodial Sentence that was imposed on him was irregular and excessive. In the premises therefore, the Appellant urged the court to allow his appeal, quash his conviction and set aside his sentence. He pleaded with the court to remit back the case to the trial Magistrate’s court   so he can take plea afresh.

During the hearing of the Appeal, this court heard oral rival submission by Ms Arunga for the Appellant and by Mr Nderitu for the State. Ms Arunga submitted that the plea of guilty that was recorded by the trial Magistrate was equivocal; the charge was not explained to the appellant to enable him understand the essential ingredients of the charge. The facts were not explained to the Appellant.  She pointed out that the words

“ … without lawful exercise” as contained in Section 27 of the Kenya National Examination Council Act  was not explained.  As regards, the second count, the particulars in support of the charge was not read to him to confirm if indeed the facts were correct or not.  Learned Counsel was of the view the Appellant’s right to fair trial was compromised. On Sentence, Ms Arunga submitted that the Appellant was sentenced to serve a custodial sentence without being given on option of a fine.   She was of the view that the trial Magistrate did not observe the directions given by the court in Adan – Vs – Republic [1973] EA 445In the premises therefore , she urged  the court to allow the appeal in its entirety.

Mr Nderitu for the State opposed the appeal.  He submitted that the Plea of guilty that was recorded by the trial magistrate was unequivocal. The charges were read to the Appellant. The facts in support of charges were read to the Appellant. He properly admitted to the charges having understood them.  There was no basis upon which the court could upset the convict.  On sentence, learned Prosecutor submitted that the offences the Appellant committed were serious and deserved the custodial sentence that was imposed.  In the premises therefore, he urged the court to disallow the appeal.

As the first appellate court, this court is required to reconsider  and re-evaluate the  evidence adduced  before the  trial court  so as  to  arrive at its  own independent determination  whether  or not  to uphold  the conviction of the Appellant.  In   doing so, this  court  must  be mindful of the  fact that  it neither saw nor heard  the witnesses as they  testified and therefore  cannot  make any  remarks regarding  the demeanor of the witnesses (See Njoroge – Vs – Republic [1987] KLR 19).

In the present appeal, the issue for determination is whether the plea of guilty that was recorded was unequivocal.  The procedure that the court is required to observe when recording a plea from an accused person is provided under Section 207 of the Criminal procedure Code. It provides thus:

“ (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 as nearly 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 course 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.”

The leading case setting out what the court recording a plea of guilty should consider is Adan –Vs- Republic [1973] EA 445.  In that case, the Court of Appeal pointed  out, interalia, for a plea of guilty  to be unequivocal the charge should be read to the accused in a language  that he understands; every element  constituting the charge must be explained  to the accused. He should be asked  to  confirm that each element of the charge is correct; the trial court should  record, as much as possible  the words  used by the accused in admitting  to the offence  so that there is  no doubt that he is  admitting  to the charge and the  facts  thereof.  If the facts stated by the prosecution do not support all the elements of the charge, the court has no option but to enter a plea of not guilty.

In the present appeal, after the Appellant was asked upon to answer to the charges, he pleaded guilty to both counts.  The prosecutor then stated to the court the following as constituting the facts that support the charge:

“On the 16th April 2021 at St Teresa’s Bikeke Kiminini the accused  was found in possession of a KCSE 2020 Paper No. 232/2 Serial No. 182/155/910/119.  During the said period he shared the same though his Whats-App group.  Investigations commenced. He was arrested. I have Exhibit No. 1. ”

The Appellant is said to have responded

“ facts  are correct”.

The issue before this court is whether the above facts support the two charges that were brought against the appellant.  It should be noted that being in possession of an examination paper from Kenya National Examination Council is not, perse, unlawful.  Indeed all schools use past examination papers in the course of revising and preparing candidates for examination.  What  the Kenya National  Examination Council  Act declares  unlawful  is for an  individual  to  have access  to an examination paper before  the same has been administered or offered  to test the candidates of those registered to undertake an examination  in respect of the particular paper.  It is also unlawful for any person to transmit the paper before it has been examined by any means of communication including Whats-APP.  That being the case, the facts provided by the Prosecution to the court were wholly inadequate and unsatisfactory to establish the charges that were brought against the Appellant.  The elements of the charge  explained above were not put to the Appellant   to answer to.  The Appellant could not therefore be expected to admit to facts which, prima facie, did not establish any offence known in law.  This court agrees with the Appellant’s Counsel that the plea of guilty that was recorded by the trial court was equivocal – the facts did not support the charges brought against the Appellant.

In the premises therefore, the appeal filed by the Appellant has merit.  It is hereby allowed. The conviction is hereby quashed. The custodial sentence imposed on the Appellant is set aside. The Appellant shall be presented before the Chief Magistrate on 7th July 2012 at 9. 00 am where he shall take plea afresh on the charges herein in a retrial that is hereby ordered by this court.  The Appellant shall be at liberty to make an appropriate application for bail (if he pleads not guilty) after the plea is taken. It is so ordered.

DATED at KITALE this 6th day of July, 2021.

L. KIMARU

JUDGE