The Prosecution’s Submissions
5.The Prosecution submitted that it was true that Section 27 (1) (a) of the Alcoholic Drinks Control Act did not use the word transport but instead used manufacture, import or distribute. That the said error did not avail the Applicant his right to a Revision. It was its further submission that by dint of Section 382 of the Criminal Procedure Code, no finding or sentence could be reversed on account of an error in a charge.
6.The Prosecution invited the court to presume that by transporting the liquor, the Applicant intended to distribute it. He urged the court to rely on Section 119 of the Evidence Act.
7.It was the Prosecution’s submission that the charge was read to the Accused in a language that he understood and he replied “true” and was accordingly convicted on his own admission. That the plea was unequivocal. It was its further submission that if the plea was equivocal, the matter could be determined on appeal where the Applicant has a right under Section 364 (5) of the Criminal Procedure Code. That where an appeal lies, no proceedings by way of Revision ought to be entertained.
8.The Prosecution conceded that the order for forfeiture of the Applicant’s motorcycle was irregular as the law did not provide for it. That under Section 362 of the Criminal Procedure Code, this court had the power to revise the forfeiture.
9.It was the Prosecution’s submission that if it is found that the Applicant’s Constitutional rights were breached, then the remedy would be damages and not an acquittal.
Analysis and Determination
10.This court’s revisionary jurisdiction is exercised under the provisions of Section 362 of the Criminal Procedure Code which states:-
11.For this revision, the powers of this court are provided for under Section 364 (1) (a) of the Criminal Procedure Code. It provides:
12.In the case of Joseph Nduvi Mbuvi vs Republic (2019) eKLR, Odunga J. (as he then was) persuasively held that:-
13.The Applicant stated that he was not given an opportunity to respond to the truthfulness of the particulars of the offence. That means that the Applicant did take plea when the facts of the case were read out to him. The manner of recording a plea is provided for in Section 207(1) and (2) of the Criminal Procedure Code :-
14.In the case of Ombena vs Republic (1981) eKLR, the Court of Appeal held that:-
15.I have read and considered the trial court proceedings and I have noted that the Applicant pleaded guilty when the substance of the charge was read to him. The trial court record shows that he uttered the words “True”. The Prosecutor then read out the facts of the case and the trial court thereafter entered the plea of guilty. The Record does not indicate that the Applicant admitted the facts. This fell foul of the aforementioned provisions of the law which provided that the Applicant ought to have pleaded again when the facts of the case were read to him.
16.It is my finding that the plea taken by the Applicant was ambiguous and equivocal. Accordingly, if the plea is equivocal, the court has a duty to step in. In Alexander Lukoye Malika vs. Republic (2015) eKLR the Court of Appeal stated as follows:-
17.The Record shows that the accused went ahead to offer mitigation in which he asked the court to forgive him as he was sick. Such mitigation however cannot be seen as bolstering the guilty plea and cannot therefore perfect an incomplete plea. I associate myself with the sentiments of Ngugi J. (as he then was) in Simon Gitau Kinene vs Republic (2016) eKLR, where he stated:-
18.It is my finding therefore that the plea was not unequivocal and cannot stand.
19.In passing the Sentence, the trial court ordered for the forfeiture of the Applicant’s Motor Cycle Registration Number KMFL 582Y to the state. The penal section under the Alcoholic Drinks Control Act does not provide the penalty of forfeiture. Section 27 (1) (a) of the Alcoholic Drinks Control Act provides that:-
20.The law on forfeiture is provided under Section 389A of the Criminal Procedure Code to wit:-
21.I am persuaded by Nyakundi J. in the case of Peter Igiria Nyambura Vs Director of Public Prosecutions (2018) eKLR, where he stated that:-
22.From the record, the trial court gave the forfeiture order promptly after convicting the Accused. It is evident from the record that there was no Notice issued to the Applicant as envisioned by the aforementioned section of the law.
23.I agree with the reasoning of Gikonyo J. in the case of Letiyia Ole Maine Vs Republic (2021) eKLR, where he held that:-
24.I further associate myself with the finding of Nyakundi J. in the case of Peter Igiria Nyambura (supra), that:-
25.In Council of Civil Service Unions vs Minister for the Civil Service (1985) A.C., Lord Diplock held that:-
26.In this case and as already stated, the trial magistrate did not conduct any forfeiture proceedings. It is my finding that he erred firstly when he imposed a penalty not provided in law and further by not granting the Applicant a chance to present his defence to the forfeiture.
27.It is my further finding that the trial court proceedings were a nullity due to the equivocal plea that was taken by the Applicant. Additionally, the sentence passed was illegal as the law did not provide for the forfeiture of the Applicant’s Motor Cycle.
28.In the end, I quash the Applicant’s conviction and set aside the sentence. The Applicant is set free forthwith unless otherwise lawfully held. Should he have paid the fine imposed, the same shall be refunded to him. The Motorcycle Registration No. KMFL 582Y be released to the applicant forthwith upon proof of his ownership or identification and authority of the registered or beneficial owner.Orders accordingly.