1.The appellant herein was convicted and sentenced on his own plea of guilty in the Senior Principal Magistrate’s Court at Runyenjes in SPMCCR No. E075 of 2022 for the offence of: Threatening to Kill contrary to section 223 (1) of the Penal Code.
2.The particulars of the offence were that on 14.02.2022 at about 1900Hrs at Gikuuri sub location within Embu County, without lawful excuse threatened to kill one Marycent Marigu Njagi by uttering words ‘ I will kill you’’ to the said Marycent Marigu Njagi.
3.The appellant was presented to court on 22.02.2022 and wherein the charge and the facts of the case were read out to him and he pleaded guilty and on 8.03.2022 he was sentenced to serve 5 years imprisonment.
4.Aggrieved by the conviction and sentence, the accused by a Petition filed on 22.03.2022 has approached this court on grounds that :
5.This Court has therefore been urged to allow the appeal, quash the conviction and set aside the sentence of the trial court.
6.The appellant submitted that the learned magistrate erred when he failed to note that he pleaded guilty out of pressure from the complainant who is his grandmother who had severally sought means to stop him from his habitual drunkenness. Further that, he pleaded guilty unconsciously and that the trial court did not indicate the language the appellant understood. He relied on the case of Fredrick Kizito Vs Republic (Criminal Appeal No. 170 of 2007) on the importance of proper recording in the criminal trial process and that of Albanas Muasya Vs Republic (Criminal Appeal No. 120 of 2004).
7.He further submitted that having pleaded guilty the court ought to have been lenient considering his age and the fact that he was a first offender and hence qualified for the benefit of the least severe punishment. That at plea taking he was confused and did not know the consequences of pleading guilty and in the circumstances the court should order a retrial or a discharge on condition.
8.The respondent on the other hand orally opposed the appeal herein. It cited Section 348 of the Criminal Procedure Code to support its case that the appellant having pleaded guilty, he therefore cannot appeal against the said plea unless he proves that there was impropriety or that the sentence meted out was illegal. That given the punishment of the charge preferred herein carries a maximum sentence of 10 years, the sentence meted out in this case being 5 years was thus legitimate in the given circumstances.
9.This being a first appeal, the role of this court is well settled. It was held in the case of Pandya v R  EA 336 that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.
10.As the appellant was convicted on his own plea of guilty, the matter did not proceed for trial, thus the trial court did not have the advantage of observing the demeanor of the witnesses and hearing them give evidence.
11.Central to the appeal is the question of plea taking and whether the guilty plea was unequivocal. Article 50 (2)(b) of the Constitution states that: -
13.Courts have had occasion to elaborate on the procedure and the manner in which a plea of guilty ought to be recorded by the trial court. In the case of Adan vs R (1973) EA 445 and in the Court of Appeal case of Kariuki v R (1954) KLR 809 the court was of the view that :-
14.The appellant herein was presented in court on 22.02.2022 and the charges and particulars of the offence were read to him and he pleaded guilty. For completeness, I will reproduce the record of the lower court wherein the accused pleaded as ‘’it is true’’. The court then noted that the appellant herein was convicted on his own plea of guilt and upon mitigation, the appellant had nothing to say. The court then ordered for a pre-sentence report. However, in Mose v R (2002) 1 EA ,163, the Court of Appeal Chunga CJ, Lakha and Okubasu JJA held;In the same vein, in George Wambugu Thumbi v Republic Criminal Appeal 1 of 2018  eKLR the Court held:
15.Having perused the court file, I note that the trial court did not warn the appellant of the consequences of pleading guilty. The importance of warning the accused person of the consequences of pleading guilty was considered in the case of Elijah Njihia Wakianda v Republic  eKLR where the Court of Appeal held that;-
16.This duty exists not only in relation to capital offences but also in other offences whose sentences may be indefinite or long. The Court must ensure that not only the accused understands the ingredients of the offence with which he is charged at all the stages of the plea taking but also that he understands the sentence he faces where he opts to plead guilty as failure to do so is a violation of the accused’s right to fair trial. [See Fidel Malecha Weluchi v Republic  eKLR].
17.Flowing from the above cases, it was pertinent that the appellant be made to understand and further, be informed of the consequences of his plea. The offence facing the appellant was a serious one and the court ought to have made sure that the appellant was aware of the gravity of the offence facing him.
18.From the above, it is clear that the plea by the appellant was equivocal and the same cannot stand. The question therefore is what orders should this court issue in the given circumstances? The appellant in his submissions prayed that this court order for a retrial or give any other order/s that it deems appropriate.
19.The law as to when a retrial should be ordered has long been settled. In the case of Fatehali Manji v Republic  EA 343 the Court of Appeal when dealing with the same issue, gave the following guideline: -
20.Similarly, in the case of Muiruri v R  KLR 552, the Court held that: -
21.From the authorities above, it is clear that in deciding whether or not to order a retrial, the court must strike a balance between the interests of justice on the one hand and the rights of the accused person on the other.
22.Further, it is trite that criminal justice is not only concerned with the rights of the accused but also the rights of the victims to see that an accused person is procedurally punished for the offence committed if he is found guilty. However, the appellant ought not to be set at liberty for the reasons of the plea being unequivocal. The criminal justice system recognizes retribution as one of the objectives of sentencing and equally, that justice for the victims of the offence ought to be delivered to their door steps. That can only be done where a retrial is ordered and the matter heard on merit. Setting the appellant at liberty will not be in the interest of justice to the victim of the offence herein.
23.The record shows that the appellant was arraigned before court on 22.02.2022 and thereafter, the court after receiving the pre-sentence report recorded that the appellant was not remorseful and that only custodial sentence would rehabilitate the appellant and then proceeded to sentence him. Being guided by Article 159(2) of the Constitution which recognizes the principles that should govern the exercise of judicial authority; which are:a.Justice shall be done to all, irrespective of status;b.Justice shall not be delayed;c.………………………………..
24.Further, in reference to the powers of this Honourable Court, [See section in an appeal are 354 of the CPC which include that;
25.The order that commends itself to me is that of allowing the appeal herein and remitting the matter for a retrial, which I hereby do. The case to be heard by a different magistrate.
26.It is so ordered.