REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAMIRA

HCCRA NO: 13 OF 2016

THADDEUS MANGERA ONDIEKI…………APPLICANT

-V E R S U S-

REPUBLIC……………………………….….RESPONDENT

JUDGMENT

1. This is a judgment of the Criminal Appeal byTHADDEUS MANGERA ONDIEKI. The appellant who is representing himself was charged with Defilement contrary to Section 8 (1) as read with Section 8 (2) of Sexual Offences Act – No: 3 of 2006.

Particulars thereof were that on 27^th day of March, 2016 at [particulars withheld]  in Masaba North intentionally caused his penis to penetrate the vagina of S M M, a child aged 17 years.

2. An alternative charge, included INDECENT ACT with a child contrary to Section 11 (1) of the Sexual Offences Act, No:  3 of 2006.

The particulars thereof were on 27^th day of March, 2016 at [particulars withheld]  in Masaba North District within Nyamira County intentionally touched the vagina of S M M a child aged 17 years using his penis.

3. On 29/03/2016, when he was asked to plead he said: ‘Ni Kweli’. As a result the plea of guilty was entered. The court duly convicted him on his own plea of guilty on alternative charge.

The court consequently sentenced him to serve (15) fifteen years imprisonment.

4. The appellant despite the plea of guilty, has changed his mind and felt aggrieved for reasons on record and has now appealed against the conviction and seeks a retrial.

5. HIS GROUNDS OF APPEAL ARE:

1. That yourHonor, the learned magistrate erred in both law and facts to have convicted and sentenced me without realizing that it was my first time I appeared before the law court.

2. That, the trial magistrate failed in both law and point to have done judgment without considering the torture I had undergone from both the police and the community policing that could not have thought and reasoned properly.

3. Thatyour Honor, the learned trial magistrate failed in law and facts to have not given me time to regain from the beatings and injuries to normal reasoning.

4. That your honor, the trial magistrate took a step of conviction and sentenced me without realizing that my fundamental rights and freedom were violated and infringed contrary to Article 50 (2) (j) of the constitution of Kenya.

5. Thatyour Honor, I have recovered and I can reason, I wish to request this Honourable court to allow this case heard afresh in court to clear my name.

6. Thatyour Honor, the police harassed and threatened me to accept the offence in court after the beating.

7. That, I was new before court and not conversant with the law, so I request for a retrial of this case.

8. That, I had no lawyer or advocate to defend me, I was not given time to get statements from witnesses in order to prepare my defence.

9. That, I kindly pray for the interest of justice to prevail, that my petition for retrial be entered and granted, so that this case can be heard afresh for it was a fabricated allegation.

6. SUBMISSIONS:

A. BY THE APPELLANT:

i. That upon my arrest, I was beaten senselessly by ASKARIS.

ii. I was coerced to admit the offence with which I was charged.

iii. I was confused.

iv. My plea was not out of free will.

v. I seek a retrial of my case.

B. BY THE RESPONDENT:

i. We are constrained to concede the appeal.

ii. The appellant’s reasons as submitted convinced me that the appellant needs to have his day in court.

iii. From the proceedings, the appellant did not know the gravity of the offence he was pleading to.

iv. Being only 20 years at the time of the offence, it is duly fair that he goes to the trial court and argue his case.

7. FIRST APPELLATE COURT:

The legal principles governing the first appeal are as enunciated in the Case of Okeno Vs Republic 1972 E.A. Page 32. Where the appellate court is enjoined to read the proceedings of the trial court evaluate the evidence and reach its own conclusion, having in mind that the court did not have the advantage of hearing and seeing the witnesses who testified.

8. ANALYSIS OF THE PROCEEDINGS:

In the proceedings, nowhere does the court tell the accused person the gravity of the offence he now faced to which he was pleading. If the court were to have told the accused of the maximum sentence he would face on sentence following his plea of guilty. I am sure, the accused would either have sought the presence of legal counsel for guidance. At any rate, he would have cited the beatings he received from askaris and the physical coercion he received from the same people. No opportunity was accorded him to argue his case.

9. The legal position on plea of guilty. It was held in the case of Adan Vs Republic (1973) E. A. 445 and 446:

“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 words and then formally enter a plea of guilty.”

Further, the magistrate should explain, in my view, to the accused person the implication of his pleading guilty and the penalty that is consequential thereto. If he still persists in pleading as he wishes, the magistrate, should then proceed to record the plea of guilty.

The courts have held that extra caution needs to be taken in case of undefended defendants who plead guilty and where the charge attracts custodial sentence.

10. FINDINGS:

For the above reasons, the appeal be and is hereby allowed and the sentence is also hereby set aside.

Accordingly, fresh plea be taken before another magistrate other than the magistrate who presided in this matter then.

11. The accused is to remain in custody as he takes a fresh plea and for the hearing and determination of his case.

Dated and delivered at Nyamira High Court this 7thday of December 2017.

C.B. NAGILLAH

JUDGE

In the presence of:-

The Appellant in person

Kongafor the Respondent

Mercy - Court Clerk