Circumstances under which a plea of guilty would not be unequivocal.

JMN v Republic [2021] eKLR

Criminal Appeal 11 of 2020

High Court at Garsen

R Nyakundi, J

March 18, 2021

Reported by Beryl Ikamari

Criminal Procedure - plea taking - plea of guilty - recording of a plea of guilty - where the court record did not show that the accused person was given sufficient detail about the seriousness of the charge before plea taking and the accused person alleged that he pleaded guilty on account of intimidation and false promises of lenient sentence - whether the plea was unequivocal - Constitution of Kenya, 2010, article 50(2)(b); Criminal Procedure Code (cap 75), section 207.

Brief facts

After pleading guilty, the appellant was convicted of the offence of incest contrary to section 20(1) of the Sexual Offences Act and sentenced to 10 years imprisonment. He was accused of having penetrated the vagina of MNM while knowing that she was his niece. The appellant filed an appeal in which he averred that the plea of guilty was not unequivocal. He explained that the plea was taken virtually while he was frightened at a police station in the presence of fierce looking uniformed police officers. He further stated that the plea was obtained through blackmail and false promises of a short probation sentence.

Issues

1. What was the procedure to be followed when an accused person pleaded guilty to a charge?
2. Under what circumstances would the court find that a plea of guilty was not unequivocal?

Held

1. The appellant was convicted on his own plea of guilty and the matter did not proceed for trial. The central question in the appeal was whether the plea was unequivocal. Under article 50(2)(b) of the Constitution an accused person had the right to a fair trial including the right to be informed of the charge with sufficient detail to answer to it. Section 207 of the Criminal Procedure Code also provided for matters related to plea taking.
2. The procedure and manner in which a guilty plea ought to be recorded by the trial court was as follows: -

1. the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understood.
2. the accused’s own words should be recorded and if they were an admission, a plea of guilty should be recorded.
3. the prosecution should then immediately take the facts and the accused should be given an opportunity to change or explain the facts or to add to any relevant facts.
4. If the accused did not agree to the facts or raised any question of his guilt in his reply it had to be recorded and change of plea entered.
5. If there was no change of plea, a conviction should be recorded as well as a statement of facts relevant to sentence and the accused's reply.

3. The proceedings at the trial court were conducted in Kiswahili. The appellant replied to the charge and to the particulars of the charge in Kiswahili language.  He mitigated to the court in the same language. The appellant understood that language.
4. When the charges were read to the appellant, he responded that ‘Ni Ukweli’, which meant ‘it is true’. However, the record did not indicate exactly what the accused person was agreeing to. It was not clear whether all the ingredients of the offence were explained to him and whether it was those ingredients that he acceded to. That raised doubts as to whether the plea was unequivocal.
5. It was pertinent that the appellant be made to understand the gravity of the charges facing him. A record that indicated that the accused was warned of the seriousness of the charge was not sufficient to show the extent to which the accused was informed of the charges facing him.
6. The plea was taken virtually with the accused person being at a police station. Under those circumstances, it was plausible that the accused was intimidated when he entered the plea of guilty. It would be unsafe to uphold the plea under the circumstances.
7. The circumstances of the case were such that the more appropriate approach would have been to engage the co-offenders in a traditional dispute resolution. The appellant was 22 years old and the co-offender was 20 yeas old - both were adults. The nature of the offence was incest and the degree of consanguinity was challenged on appeal. The Appellant contended that he was an uncle of the second degree to the accused, being the cousin of the co-offender’s mother. That degree of consanguinity was far removed as to allow for there to be a better resolution. After all, as aforesaid, the wording of section 22 (2)(a) of the Sexual Offences Act was of an ambiguous nature and often came in conflict with traditional African and Kenyan cultures definition of relatives.

Appeal allowed. Conviction quashed and sentence set aside.