|Criminal Appeal 220 of 2010
|SAIKO LEKERESIE v REPUBLIC
|28 Mar 2011
|High Court at Nakuru
|SAIKO LEKERESIE v REPUBLIC  eKLR
|An Appeal from original conviction and sentence in Nakuru C.M.CR.C.NO.7179/2009 by Hon D. K. MIKOYAN, Senior Resident Magistrate, dated 11th February, 2010
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
CRIMINAL APPEAL NO. 220 OF 2010
This is an appeal arising from a plea of guilty which ordinarily by dint of Section 348 of the Criminal Procedure Code can only be entertained in so far as severity or legality of the sentence is concerned. I have said ordinarily because it is now settled that Section 348 aforesaid is not a complete bar to an appeal on any ground other than severity or legality of the sentence.
The appellant who was charged with grievous harm contrary to Section 234 of the Penal Code was convicted and sentenced to 15 years imprisonment on his own plea of guilty. He was aggrieved and now brings this first appeal through counsel challenging the decision of the trial magistrate on the grounds that the plea was equivocal; that the interpreter was not sworn; that the appellant was denied legal representation and that the leaned magistrate failed to explain to the appellant all the ingredients of the offence charged.
I have considered the grounds of appeal, submissions and authorities cited. The only issue in this appeal is whether or not the plea was unequivocal. It is noted that when the appellant was first brought to court, he pleaded guilty but when the facts were narrated to him, he explained the circumstances of the attack on the complainant thereupon, the trial magistrate entered a plea of not guilty. Two months later, he changed his plea and admitted the offence. It is imperative that this part of the record before the trial court be reproduced here:
How can such meticulous approach be faulted?
I have no doubt that the appellant wished to plead guilty and did so unequivocally. He perfectly understood the proceedings before the learned trial magistrate who went out of his way to ensure the appellant understood and appreciated that he was admitting the offence. He voluntarily did so. See Ebenyo Yeiya Elim Vs. Republic, Criminal Appeal No. 53 of 2010 Eldoret). The appellant has also complained that the interpreter was not sworn. No law was cited in support of this. However no prejudice was suffered as the appellant has not complained on the competence of the interpreter or accuracy of the interpretation.
The final ground is on the appellant’s legal representation. Counsel representing the appellant in this appeal appeared before the court below on the day of first appearance after the plea had been taken – at the stage of surety approval. She did not address the court as indeed no such opportunity is available to counsel when the court is examining a surety. That was on 23rd December, 2009. In her presence, the matter was slated for mention on 7th January, 2010. From 23rd December, 2009, counsel did not appear until the filing of this appeal, one year later. Although the appellant had an interpreter, he did not even suggest that he had an advocate. The appearance of the advocate in the manner described hereinabove, in my view, did not make her the advocate for the appellant.