1.The appellant herein was charged with the offence of drug trafficking contrary to Section 4(A) of the Narcotic Drug and Psychotropic Substance Control Act No. 4 of 1994 with the particulars being that on 01.02.2022 at about 1600Hrs in Ishiara Township, Ishiara Location in Mbeere North Sub County within Embu County, was found trafficking drugs namely cannabis sativa (bhang) to wit (22) twenty two rolls of small stones with a street value of approximately Kshs. 15,000/= which was not medically prescribed.
2.The appellant pleaded guilty to the charge and he was convicted on his own plea of guilty.
3.Being dissatisfied with the conviction and sentence, the appellant lodged the appeal herein. His petition of appeal is dated 15.02.2022 wherein he relied on three grounds of appeal challenging his conviction and sentence.
4.The court thus gave directions that the appeal be disposed off by way of written submissions and both parties complied with the aid directions.
5.The appellant in arguing his case fronted three heads to wit whether the procedure for obtaining the plea of guilty was unequivocal; the appellant submitted that the procedure adopted by the trial court made the plea herein equivocal for the reason that the language that was used to read the charge and in explaining every element thereof is not known to this Honourable Court. That it is unclear whether the appellant understood the charges he was facing. In the same breadth, it was the appellant’s contention that he was not made to understand the consequences of such a plea or the seriousness of the charges facing him and consequences of his plea of guilty. Further, the trial court did not indicate the exact response of the appellant after the charge was read to him. To this end, reliance was placed on the case of Simon Gitau Kinene v Republic  eKLR; where the court held that it is the duty of the trial court to see that the accused person understands the elements of the charge facing him especially if the evidence suggests that he has a defence i.e. the charge is likely to attract a custodial sentence. In the end, the appellant submitted that the same did not happen in the case herein and as such, the plea as taken was equivocal.
6.On whether the learned magistrate erred in finding the appellant not remorseful, it was the case of the appellant that indeed, he prayed for leniency by informing the court that he was diabetic and HIV positive. In that regard, the appellant argued that it was erroneous for the trial magistrate to find him unremorseful whereas he clearly explained to the court what his problem was. That the Honourable Court ought to have been lenient in sentencing the appellant but to the contrary, it only lamented on the public outcry in regards to the increase in the usage of such prohibited substances within the area.
7.On whether the sentence meted out was harsh, oppressive and excessive, it was his case that the same was uncalled for, for the reason that the appellant was a first offender and the trial magistrate ought not have meted out a deterrent sentence. That the trial court did not find the appellant herein remorseful and that he gave him no option of a fine but meted him a custodial sentence which the appellant view as being harsh, oppressive and excessive. Further, it was submitted that the appellant has been in prison for a period of over one year and in that regard, he has since learnt his lesson and has reformed. In the end, it was submitted that even if he were to be released today, justice will have been served.
8.In its submissions, the respondent submitted that the Court of Appeal in the case of Adan v Republic  EA outlined the procedures to be followed as well as the manner in which pleas of guilty should be recorded. That from the contents of the proceeding dated 02.02.2022, the charge was read and the substance of the same was explained to the appellant in a language that he understood and wherein he replied that ‘it is true;. It was its case that since the law requires the trial court to record the accused’s exact words, if the appellant responded, ‘it is true’ the learned trial magistrate was only required to record that. Further, the respondent stated that the facts which captured all the elements of the offence were thereafter read out to the appellant and that he did not deny the alleged facts if at all. Further, it was its case that the appellant proceeded to mitigate as a further indication that he indeed committed the offence and as such, he is estopped from denying that he did not comprehend the happenings in the court at that material time.
9.In response to the ground that the trial magistrate should have warned the appellant of the implications of entering a plea of guilty, the respondent relied on the case of Charles Nyaga Mwiti v Republic  eKLR in that, the case highlighted that unless the charge includes a mandatory death or life sentence, there is no legal requirement for the trial court to warn an accused who chooses to enter a plea of guilty.
10.On whether the sentence meted out was harsh, oppressive and excessive, reliance was placed on section 4(a) of the Narcotic Drugs and Psychotropic Substances Act which stipulates a fine of not less than thirty million shillings or to imprisonment for a term of thirty years; and therefore, a five year jail term in the case herein was neither excessive nor illegal.
11.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.[ See Okeno v Republic].
12.However, where an accused person has pleaded guilty to the charge, he cannot appeal on facts. In other words, he can only appeal against the sentence only. In the instant case, the appellant pleaded guilty and was convicted on his own plea, the only issue that this court ought to determine is whether or not in the circumstances of this case, the sentence that was meted out was lawful and/or warranted.
13.In the case of Olel v Republic  KLR 444, it was held that:-
14.It follows that the appellant is, by virtue of this section, barred from challenging the conviction and his only recourse was to challenge the extent or legality of the sentence imposed on him by the trial court.
15.That bar, in my view only operates where the plea is unequivocal. Accordingly, that bar does not prevent this court from inquiring as to whether a prima facie plea of guilty was unequivocal or not. Similarly, it does not bar the court from making an inquiry as to whether the facts constituted any offence. Where the plea in unequivocal, I adopt Mwita, J’s holding in John Shikoli Atsunzi v Republic  eKLR that, that would make the conviction unlawful thus justifying the court in addressing itself on the issue of conviction.
16.In Alexander Lukoye Malika v Republic  eKLR the Court of Appeal identified the situations in which a conviction based on a plea of guilty can be interfered with as follows:
17.Accordingly, if the plea is equivocal, the court has a duty to step in.
18.The manner of recording of a plea is provided for in Section 207(1) and (2) of the Criminal Procedure Code provides as hereunder:(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 cause 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.[See Ombena v Republic  eKLR].
19.It is therefore clear that the charge, the particulars and the facts must be read to the accused in his language or in a language he understands. This is my understanding of the decision in K N vRepublic  eKLR, where it was held that:
20.In this case, it is not clear which language was used save for the fact that it is noted that “the charge and every element thereof has been stated by the court to the accused in a language that he understands’’. It is not clear which language the court used and given that the same is contested by the appellant, it is my humble view, therefore, that the same cannot go unnoticed. I say so for the reason that it was the duty of the Court to ensure that the said facts were not only read over to the appellant but were read over to him in a language which he had indicated that he understood.
21.In this regard I associate myself with the view of the Court of Appeal in Elijah Njihia Wakianda v Republic  eKLR that:
22.Apart from that the charge facing the appellant was a serious one. In Elijah Njihia Wakianda v Republic (supra) the Court expressed itself as hereunder:
23.I associate myself with W. Korir, J in Abdallah Mohammed v Republic  eKLR where he expressed himself as hereunder:
24.The need for the court to be cautious when accepting a plea of guilty from an undefended accused person was stressed by Joel Ngugi, J in Simon Gitau Kinene v Republic  eKLR when he stated that:‘19. Finally, courts have always held that extra caution needs to be taken in the case of undefended defendants who plead guilty. I have previously held that where an Accused Person is unrepresented, the duty of the Court to ensure the plea of guilty is unequivocal is heightened. In Paulo Malimi Mbusi v R Kiambu Crim. App. No. 8 of 2016 (unreported) this is what I said and I find it relevant here:In those cases [where there is an unrepresented accused charged with a serious offence], care should always be taken to see that the Accused understands the elements of the offence, especially if the evidence suggests that he has a defence…To put it plainly, then, one may add that where an unrepresented Accused Person pleads guilty to a serious charge which is likely to attract custodial sentence, the obligation of the court to ensure that the Accused Person understands the consequences of such a plea is heightened. Here, the Court took no extra effort to ensure this. In these circumstances, given the seriousness of the charge the Court was about to convict and sentence the Accused Person for, it behooved the Court to warn the Accused Person of the consequences of a guilty plea.’”
25.I therefore find that, the manner in which the charge was read out to the appellant did not strictly comply with Section 207(1) and (2) of the Criminal Procedure Code. In the premises, the appellant’s plea cannot be said to have been unequivocal.
26.What is the course available to the Court in such circumstances therefore? In other words, should the Court order a retrial? The Court of Appeal in the case of Ahmed Sumar v R (1964) EALR 483 offered the following guidance:
27.The Court of Appeal likewise had the following to say in the case of Samuel Wahini Ngugi v R  eKLR: -
28.In this case, the appellant was sentenced to serve a period of 5 years. In those circumstances, the appropriate order would be to order for a retrial and not setting the appellant free in as much as he is diabetic and/or abled differently as submitted by counsel.
29.Accordingly, the appeal is allowed, the appellant’s conviction is hereby set aside and his sentence quashed. I direct that the matter be heard de novo before a different magistrate.
30.It is so ordered.