• Odunga says accused was not informed of the consequences of pleading guilty to such an offence.
• Says presence of the accused is not indicated in court records.
Four years ago NK pleaded guilty to defiling his young niece, saying he had been drunk, and was sentenced to life in prison.
The girl was six years old.
Now a judge has set aside that sentence and directed NK be charged fresh and be made to fully understand the seriousness of the offence he pleaded guilty to.
Judge George Odunga said the accused was not informed of the consequences of pleading guilty to such an offence.
This, he said, violated NK's right to a fair trial.
“In this case since the charge which the appellant faced carried a life imprisonment, it is my view that in serious offences where the sentences may either be long or indefinite, the court must ensure not only that the accused understands the ingredients of the offence with which he is charged at all the stages of the plea-taking, but that he also understands the sentence he faces where he opts to plead guilty,” Odunga ruled.
NK appealed against the life sentence, saying the trial court erred in law and fact by failing to exercise any caution or vital safeguards before convicting him on his plea of guilt.
He said the court did not explain to him the consequence of pleading guilty, as required by law.
NK argued that the coram does not indicate his presence in court, which makes his conviction invalid.
The prosecution conceded the appeal but requested a retrial.
In his decision, given on May 28, Odunga noted: “I have perused the record of the proceedings. In the handwritten proceedings, the presence of the accused is not indicated.
"Instead, there is what appears to be a standard stamp. With due respect, such a procedure which applies a standard mode of indicating an accused’s presence is highly inappropriate in criminal proceedings.”
He added that the language used in the plea-taking is not clear since the record in the court's file indicates English/Kiswahili/Kikamba.
“The manner in which the proceedings were recorded was itself rather ritualistic. Although the proceedings show that the appellant pleaded guilty to the offence, in his mitigation, he stated that he was under the influence of alcohol. In my view, that if true would have constituted a defence,” Justice Odunga said.
“I quash the conviction and set aside the sentence. I set the clock back so the process is restarted on proper footing. In consequence, I direct that the appellant shall be presented before the Chief Magistrate's Court at Machakos for the purpose of taking a fresh plea to the charge.”
Edited by Josephine M. Mayuya