A Court is not entitled to Sacrifice Due Process to Exigencies of Circumstances and Expedition

David Kimani Gitau v Francis Wainaina

Civil Appeal 37 of 2016

High Court at Kiambu

J  Ngugi, J

October 25, 2016

Reported By Nelson Tunoi & Silas Kandie

Civil Practice and Procedure - pretrial directions and conferences- case conferences – where the trial court had skipped some of the procedures lay down- whether failure by the trial court to comply with the procedures was fatal- whether such action by the court affected procedure fairness to the parties of the case- Civil Procedure Code, 2010, Order 11.

Brief Facts

The Plaintiff sought interim orders injuncting the Defendant from taking away the remains of Mary Wanjiku Wainaina (Deceased) (who died on July 16, 2016) from the mortuary and interring it. Mary was his daughter; she was, according to him, unmarried to the date of her demise. As such, he, as her father had the sole and exclusive right to inter her remains. The Plaintiff, therefore, sought a declaration that he had a superior right to inter the remains of Mary and, consequently, an order restraining the Defendant from taking Mary’s body, interring it or in any other manner interfering with his exclusive right to inter the remains. He further sought an order directing Kenyatta University Mortuary not to release the remains of Mary to any person other than himself. In particular, he sought a permanent injunction against the Defendant from receiving or interring the remains.

Issue:

i) Whether failure to conduct a pretrial hearing at trial led to procedural unfairness to parties.

Held

1. Pre-trial procedures, like all rules of procedures, were the handmaidens of justice and not its mistress. Hence, they were not formulaic or talismanic steps which had to be rigidly followed regardless of their utility to the trial process. Indeed, Order 11 of the Civil Procedure Code existed to ensure that the trial process was more efficient. Hence, a Court might, where circumstances and context permit or dictated skip, abbreviate or bespoke the pre-trial processes and procedures. The nature of the case indicated that the case might be a good candidate for that.
2. Where a Court had determined that the dictates of justice required a customization of or an altogether skipping of pre-trial conference, the trial schedule or scheduling order and timeline which a trial court had to adopt had to be one which ensures procedural fairness to the parties. A Court was not entitled to sacrifice due process to exigencies of circumstances and expedition.
3. There was reason to worry that the Appellant became a victim of the abbreviated process adopted by the Court. When the Appellant and his advocate appeared in Court on July 21, 2016, he had barely been served with the suit papers. His advocate sought for time to file replying papers for the Notice of Motion Application dated July 22, 2016. That was, at maximum, a mere two days after he had been served with the suit papers. Instead of the Court extending the time for the Appellant to file replying papers for the Notice of Motion Application, the Court set the date for hearing and instructed the Appellant to file their Defence and show up for the hearing of the main suit six days later on August 1, 2016.
4. While defence said the advocates mutually agreed to dispense with the application and proceed to full hearing, the Court record did not show any such agreement. Indeed, the Court record was silent on what happened to the application dated July 22, 2016. It was not withdrawn, dispensed with or marked as settled.
5. It was obvious that the Court was moved by the need to proceed with speed given the fact that it was a burial dispute and the body was in the mortuary awaiting the resolution of the case. However, the Court’s orders resulted in three situations. First, the Appellant was forced to scramble to file a Defence within a super-abbreviated period and the brevity of time was betrayed by the general nature of the Defence filed. Second, and perhaps more seriously, the Court’s orders constrained the nature of defence and case the Appellant was able to Marshall.
6. When the trial Court remarked that “there being no credible competent witness who can give testimony of high probative value that the two conducted themselves and were regarded by the members of the public as husband and wife the evidence inadequate and it fall (sic) short of proving an alleged (sic) marriage”, it was precisely because the Appellant had not had the opportunity to call such witnesses. The inadequate time to prepare for the case would also explain the lack of counter-claim despite the nature of the case disclosed in the Defense’s testimony.
7. While it was commendable for the Court to be flexible and to try and expedite the hearing, it behooved the Court to stipulate a scheduling order and trial timeline that while abbreviated, they accorded each party procedural due process to develop its case sufficiently before the case was set down for hearing. In the end, the trial was not fair and led to an oppressive procedure and outcome for the Appellant who did not have adequate opportunity to develop the record and prepare for trial.
8. Consequently, the judgment had to be set aside. In the circumstances, then, the only fair outcome out of the appeal would be to remand the case back to the lower court for hearing since it would be a miscarriage of justice for the Court to attempt to come to conclusions of fact or law based on a record resulting from what it could describe as a “still-birth trial” at the trial court.
9. The decision to remand the case for full development of the record and re-trial was made more inevitable by the subject matter of the case. While presented as a burial dispute, at bottom, the determination that the Court had to make was whether the Appellant and the deceased were husband and wife. That was a consequential decision which could only be made after the parties had full opportunity to present their respective cases.

The case to be remanded to Thika Chief Magistrate’s Court for re-trial. The parties to appear before the Chief Magistrate on Monday October 31, 2016 for directions. The Chief Magistrate to allocate the case file to a magistrate other than the trial magistrate who had initially heard the case. Costs to abide by the outcome of the case as re-tried. 

Court has a duty to ensure a plea of guilty is unequivocal when an Accused Person is unrepresented

Simon Gitau Kinene v Republic

Criminal Appeal No 9 of 2016

High Court at Kiambu

October 25, 2016

J Ngugi, J

Reported by Phoebe Ida Ayaya

Criminal law- mental illness-record of mental illness- whether the trial court record did not have any indication that there was an attempt to bring to its attention the suspicion that the appellant was mentally ill-Penal Code section 11; Criminal Procedure Code section 162

Criminal procedure –pleas-plea of guilty-equivocal plea-validity of an equivocal plea- whether the plea of guilty by the Appellant was equivocal and if the Accused person understood the consequences of that plea – Criminal Procedure Code

Criminal law-sentencing- principles of sentencing- whether the sentence meted to the accused was harsh and disproportionate -Penal Code section 26(2)

Brief facts

The Appellant appealed against both conviction and sentence of the Gatundu Principal Magistrate’s Court Criminal Case No. 12 of 2016. The Appellant was arraigned before the Trial Magistrate on January 6, 2016 charged with a single count of trafficking in narcotic drugs (bhang) contrary to section 4(a) as read together with sub-section 2(a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. The Appellant argued that it was wrong for the Trial Court to have proceeded with the trial without first calling for a mental assessment report.  Had the Trial Court done that, it would have discovered that the Appellant was mentally ill and therefore unfit to stand trial thus the current appeal.

Issues

1. Whether the Trial Court record did not have any indication that there was an attempt to bring to its attention the suspicion that the Appellant was mentally ill
2. Whether the plea of guilty was equivocal and if the Accused person understood the consequences of such a plea according to section 11 of the Penal Code
3. Whether the sentence meted to the accused was harsh and disproportionate

Relevant Provisions of law

Penal Code

Section 11 provides as follows:

 Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

Section 26(2) provides as follows

 Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term.

Criminal Procedure Code

Section 162 reads as follows:

 162. (1) When in the course of a trial or committal proceedings the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness.

 (2) If the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, it shall postpone further proceedings in the case.

Narcotic Drugs and Psychotropic Substances Control Act

Section 4(a) provides that:

 Any person who trafficks in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable—

 a. in respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life.

Held

1. The law is that every accused person is presumed to be of sound mind under section 11 of the Penal Code.  The burden is on the Accused Person to rebut this presumption.  However, the Court is obligated under section 162 to take action – for example by ordering a mental assessment – where it comes to the attention of the Court that the Accused Person may be of unsound mind.
2. The Trial Court could not be faulted for proceeding as it did in the circumstances.  There was simply no material brought to the attention of the Trial Court to suggest that the Appellant was of unsound mind to warrant further inquiry by the Court. In the circumstances, that ground of appeal was unavailing to the Appellant.
3. When a person was charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that was not possible, then in a language which he could speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused admitted 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.
4. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement was complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused did not agree with the statement of facts or asserts additional facts that, 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 did 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 be recorded.
5. The first point for analysis was an important point of departure namely the trite law to the effect that whether a guilty plea was unequivocal or not depended on the circumstances of the case.  Differently put, an appellate or a revising court was to take the totality of circumstances into account in determining the equivocality or otherwise of a guilty plea.
6. With the totality of circumstances test in mind, the following observations were appropriate from the proceedings in the Magistrates’ court. First, although the Court record indicated that the charge and every element thereof was stated by the Court to the accused person in the language he understood, it was critical that the Court did not state which language was used to explain.  Second, while Adan Case stipulated the salutary practice that the Court records the words of the Accused Person verbatim, that did not happen in the instant case.  Instead, the Magistrate recorded the response in English: “It is not true.”
7. The fact that the Accused engaged in mitigation could be an indication that he understood what was going on but a guilty plea should not be left to any deductions or conjecture. It should be clear, unambiguous and unequivocal.  It should be even more so when the Accused faces a serious charge capable of attracting custodial sentence.
8. Extra caution needs to be taken in the case of undefended Defendants who plead guilty. Where an Accused Person was unrepresented, the duty of the Court to ensure the plea of guilty was unequivocal was heightened.
9. Where there was an unrepresented Accused charged with a serious offence, care was always taken to see that the Accused understood the elements of the offence, especially if the evidence suggested that he had a defence. To put it plainly, then, one may add that where an unrepresented Accused Person pled guilty to a serious charge that was likely to attract custodial sentence, the obligation of the Court to ensure that the Accused Person understood the consequences of such a plea was heightened.  In the present case, the Court took no extra effort to ensure that. In the circumstances, given the seriousness of the charge the Court was about to convict and sentence the Accused Person for, the Court was to warn the Accused Person of the consequences of a guilty plea. It was unsafe to uphold the guilty plea in the circumstances.
10. Section 4(a) does not impose mandatory sentence. Since given that the conviction on a guilty plea was not safe in the circumstances automatically quashed the sentence as well, for future guidance it was important to remind trial courts that the provisions of section 4(a) of the Act merely give the Trial Court discretion in sentencing and did not impose any minimum sentences.  Trial Courts might be well advised to bear in mind the provisions of 26(2) of the Penal Code.
11. The section made it clear that unless the law prescribing the sentence expressly provided otherwise, a court could sentence an Accused Person to a shorter period than that prescribed in the law prescribing the sentence.  In other words, the Trial Court was clothed with the discretion to impose a sentence of imprisonment which was shorter than that prescribed except where mandatory minimum sentences were expressly prescribed.

Appeal allowed:

i. The guilty plea entered in Gatundu Law Courts in Criminal Case no 12 of 2016 set aside. In its place a plea of not guilty shall be recorded in the case.

iii.  The sentenced imposed on the Appellant set aside.

iv. The Appellant shall be released from Prison forthwith and shall, instead, be placed on remand pending his presentation before the Magistrates’ Court for a retrial.

v. The Appellant shall be presented before the Principal Magistrate, Gatundu Law Courts on Thursday, October 27, 2016 for directions.  The case shall be allocated to a magistrate other than the Honourable W. Ngumi who initially heard the case.

 vi. The Deputy Registrar directed to send back the Trial Court file in Criminal Case No. 12 of 2016 and a copy of this file and ruling to the Principal Magistrate’s Court, Gatundu for compliance.