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Daniel v Republic (Criminal Appeal E024 of 2022) [2022] KEHC 15934 (KLR) (1 December 2022) (Judgment)
Neutral citation:
[2022] KEHC 15934 (KLR)
Republic of Kenya
Criminal Appeal E024 of 2022
GMA Dulu, J
December 1, 2022
Between
Joshua Wambua Daniel
Appellant
and
Republic
Respondent
(Being an appeal from the original judgment of Hon. J.O Magori in Makindu Principal Magistrate’s Court PM (S.O) Case No.39 of 2020 pronounced on 17th February 2021)
Judgment
1.The appellant was charged with attempted defilement contrary to section 9(1) of the Sexual Offences Act No 3 of 2006 and an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.
2.The victim was said to be a male child of about 3.
3.He initially admitted the charge but was warned and taken for mental assessment and certified fit to plead and stand trial. After being warned again, he denied the charge. Thereafter PW1 Mary Mwelu Muthama his employer and mother of the victim, testified in court. After the testimony of PW1, the accused again admitted committing the offence, and even after being warned again, he maintained his plea and was convicted and sentenced to ten (10) years imprisonment.
4.He has now come to this court on appeal against conviction and sentence on the following grounds –
5.Both the appellant and Director of Public Prosecutions filed written submissions.
6.I have perused the proceedings of the trial court. The appellant initially pleaded guilty, and was warned. He later pleaded not guilty to the charges.
7.After PW1 Mary Mwelu Muthiani testified however, he again changed his plea to guilty. He was then again warned of the seriousness of the offence and the long prison sentence but still maintained his plea of guilty.
8.The facts of the case were then summarized by the prosecutor and he agreed to the same and was then convicted.
9.In my view, the appellant has come on appeal trying to change his plea of guilty which was properly entered before the trial court. A plea of guilty, can only be set aside by the appellate court if it is equivocal.
10.In the present case however, the plea of guilty of the appellant is unequivocal. The trial court adhered to all the principles described in the case of Adan v Republic (1973) EA 445. My finding is based on the fact that the charge was read to him in kiswahili language which he understood. He pleaded guilty on the first day of plea on April 29, 2020 and he was warned by the magistrate and even taken for psychtrist report. Thereafter he pleaded not guilty.
11.Again, after PW1 Mary Mwelu Muthama testified, he changed his plea to guilty and was again warned by the trial court, but he maintained his plea of guilty to the end, and agreed to the facts as summarized by the prosecutor.
12.I thus finds that the appellant fully understood the charge leveled against him and that the plea of guilty of the appellant was an unequivocal plea of guilty. As such there is no basis for quashing the conviction recorded by the trial court against him.
13.Lastly, the sentence imposed is also lawful, and I cannot interfere with the same.
14.I thus find no merits in the appeal. I dismiss the appeal and uphold both the conviction and sentence of the trial court.Right of appeal explained.
DELIVERED, SIGNED & DATED THIS 1ST DAY OF DECEMBER 2022, IN OPEN COURT AT MAKUENI.………………………………….GEORGE DULUJUDGE
