1.The appellant has appealed against his conviction and sentence of 50 years imprisonment in respect of the offence of child pornography contrary to section 16 (1) (a) of the Sexual Offences Act No. 3 of 2006.
2.The appellant was charged with the offence of child pornography contrary to section 16 (1) (a) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on diverse dates between May 2013 and October 2014 within the Republic of Kenya by use of electronic media namely Gigatribe yahoo chat and Skype circulated obscene publications depicting images of a child. On 21st November 2014, the substances of the charge and the particulars thereof were explained to the accused in English, a language the lower court recorded he understood.
3.The appellant admitted the charge. A plea of guilty was recorded. The appellant was convicted on his own plea of guilty.
4.The appellant after mitigation was sentenced to an enhanced term of fifty (50) years imprisonment.
5.Being dissatisfied with the conviction and sentence he filed three grounds of appeal in his memorandum of appeal. The main grounds raised are as follows. The trial court erred in law and fact in convicting the appellant on his plea of guilty, which plea was not unequivocal, the trial court erred in law and fact by convicting the appellant based on a charge sheet that was fatally defective as the charges did not tally with the facts of the case, and the trial court erred by enhancing the sentence to 50 years imprisonment. The sentence was harsh, disproportionate, inhuman, unfair and was in disregard to the provisions of the law.
The appellant’s submissions
6.In his submissions, the appellant stated that on 3rd November 2014, when the charges were read to him, he pleaded not guilty. However, the said not guilty plea was never recorded. On 7th November 2014, when the matter was in court, the prosecution requested for the charges to be read out to the appellant again. This time, he admitted the charges. However, the said plea was never recorded and the case was adjourned to another date. On 21st November 2014 the charges were read to him and he admitted the charge.
7.It is the appellant's submission, that not every element of the charge was explained to him and he did not give a response to each specific element of the charge. He further submits that he was not warned of the consequences of pleading guilty to the serious charge which attracted a harsh custodial sentence. He cited the case of Paulo Malimi Mbusi v Rep Kiambu Criminal Appeal No. 8 of 2016 (unreported), where the court observed that:
8.Secondly, the appellant submitted that the charge sheet as framed was fatally defective. The appellant argued that for the offence of child pornography under section 16 (1) (a) of the Sexual Offences Act to be complete, the prosecution had to prove that there existed pornographic content in any form that was knowingly displayed, shown, exposed or exhibited to a child with intention of encouraging or enabling a child to engage in sexual acts. He stated that in this case, the facts read out by the prosecutor and adopted by the court failed to point out that the pornographic materials mentioned were displayed, shown, or exposed to any child to encourage or enable that child to engage in sexual acts and that this act was done by the appellant and not by any other person.
9.On the issue of the sentence being harsh, the appellant submitted that the sentence was unlawful. He stated that no notice or warning was given to the appellant by the learned magistrate that there was a possibility of the sentence being enhanced contrary to the provisions of section 364 (2) of the Criminal Procedure Code (Cap 75), Laws of Kenya and article 50 (2) (p) of the Constitution. He further submitted that his right as an accused person to benefit from the least severe punishment as prescribed by article 50 (2) of the Constitution of Kenya was violated.
10.In conclusion, he urged the court to find that the sentence meted by the trial court was unlawful, based on wrong principles and excessive.
The respondent’s submissions
11.Mr. Dancun Ondimu, Senior Prosecution Counsel submitted that the offence of child pornography is provided for under section 16 (1) (a) of the Sexual Offences Act. That the key elements are that a person must be in possession of the indecent photograph of the child. He referred to the facts and exhibits which were presented before the trial court especially exhibit 5, which showed young boys and girls. Further, the appellant is seen in photographs and videos, of sexual acts with minors and he kept recording the acts. He argued that the prosecution brought out the fact that the appellant had committed the offence for which he was charged and rightly convicted.
12.On whether the sentencing was proper, learned counsel submitted that the trial court in sentencing the appellant to 50 years imprisonment, considered the plea of guilty and remorse, the nature of the offence and defencelessness of the victim and the prevalence of the crime. He submitted that the victims of the crime were very young children, the appellant took advantage of their vulnerability and therefore the aggravating factors of the crime outweigh the mitigating factors. Consequently, the sentence that was passed by the trial court was most appropriate to ensure that the ends of justice were met.
Issues for determination
13.I have perused the court record; I have also considered the submissions of the parties. I find the following to be the sole as issue for determination: -i.Whether the plea of guilty and conviction were unequivocal
Analysis and determination
14.The procedure and guidelines for plea taking are well articulated in section 207 of the Criminal Procedure Code (Cap 75) Laws of Kenya and the same was affirmed by the court in the case of Adan vs Republic  EA 445, where it was held:
15.The record shows that the charges were first to read to him on 3rd November 2014 when he pleaded not guilty. On 7th November 2014 the prosecution requested the charges to be read out to the appellant again. This time he admitted the charges. The case was adjourned at the request of the prosecution to verify the facts and the particulars of the charges. On 21st November 2014 the charges were read to him and he admitted the charges in the English language, which is indicated as the language he understood.
16.Courts have always held that extra caution needs to be taken in the case of undefended persons who plead guilty. When an accused is unrepresented, the duty of the court to ensure the plea of guilty is unequivocal is heightened especially when it comes to informing him/her of the consequences of pleading guilty.
17.In the instant appeal, the appellant was represented by counsel when he changed his plea to a plea of guilty. From the record, nothing is indicative that the appellant was informed of the consequences of his guilty plea.
18.However, he was represented by counsel who was also under an obligation to advice his client.
19.I find that the appellant was not warned of the consequences of pleading guilty to the serious charge which attracted a harsh custodial sentence. The fact that he was represented by an advocate did not relief the trial court of warning the appellant of the consequences of pleading guilty to the charge. The warning by the court is a must even where an accused is represented by an advocate; since representation by counsel may turn out to be ineffective.
20.It therefore follows that the plea of guilty was not unequivocal with the result that the conviction and sentence are hereby quashed.
21.The only issue is whether I should order for the re-trial of the appellant pursuant to this court’s powers in section 354 (3) (a) of the Criminal Procedure Code (Cap 75) Laws of Kenya; since the trial pf the appellant was fundamentally defective. Stated differently, the case of the appellant was a mistrial.
22.I find that the appellant has been in custody since his arrest on 31/10/2014, which translates to a period of eight years and one month in both pre-trial and imprisonment custody.
23.The maximum sentence provided for is a minimum sentence of 6 years imprisonment or a fine of not less than shs. 500,000/- or to both such sentences and upon subsequent conviction, for imprisonment to a term of not less than seven years without the option of a fine. This is clear from the penalty provisions which are coached in the following terms:16. (1)Any person including a juristic person who –
24.I find that the appellant has been in custody for eight years and one month. In these circumstances, I find that to order for a re-trial of the appellant would not only be unfair but oppressive as well.
25.I therefore decline to order for the re-trial of the appellant with the result that the appellant is hereby set free unless he is held on other lawful warrants.