• Mwangi was convicted on his own plea and sentenced to serve five years in prison for threatening to kill two police officers.
• The High court however found that his statements did not indicate any threats, least of all, one to kill.
Image: FILE
In 2022, a Busia court convicted a man on his plea and sentenced him to a five-year jail term for threatening to kill a chief inspector and a police constable.
A recent review into the case has, however, shown that the facts on their own could not provide the proper basis for a charge under Section 223(1) of the penal code.
The section states that, "Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years."
The gist of the matter is that on June 12, 2022, at the customs yard in Malaba, Busia County, Stephen Mwangi was driving and obstructing when the two police officers stopped him.
The three got into talking when Mwangi told the officers, "Nitawagonga muwe chapati."
This is loosely translated to, "I'll hit them into chapati.".
He was arrested and arraigned where he was charged with threatening to kill contrary to law.
On June 22, 2022, Mwangi pleaded guilty to the charge, where the court records show that according to the typescript, his words were "Nitwangeni kama chapati (Beat me like chapati)".
The review also showed that he also answered to having said "Nitwagonga kama chapati," according to the handwritten notes of the original trial record.
His answer to both versions was "kweli (yes)".
A week and some days later on July 5, the court sentenced Mwangi to five years in prison.
He was however unsatisfied by the decision of the trial court and moved to the High Court at Busia appealing against the sentencing.
Appearing before Judge William Musyoka, Mwangi mitigated that he was a first offender and had acted under the influence of alcohol when he uttered the words.
He added that he was remorseful and undertook to not repeat the offence.
Further, he told the court that his family was suffering as he was the sole breadwinner and prayed that he be considered for a non-custodial sentence.
On its part, the state argued that a person who had pleaded guilty could only appeal against the sentencing to the extent of its legality.
This is according to section 348 of the Criminal Procedure Code which states that "No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence".
The prosecution further submitted that the plea was equivocal, as the offence of threatening to kill was not disclosed in the facts read out in support of the charge.
It is also submitted that the manner in which the plea-taking was handled made the trial unfair, as it did not comply with Article 50(2)(b) of the Constitution, "Every accused person has the right to a fair trial, which includes the right to be informed of the charge, with sufficient detail to answer it".
Further, Mwangi was not warned of the danger of pleading guilty.
Finally, it is submitted that the sentence was lawful and urged that as the plea was equivocal, a retrial ought to be ordered.
After hearing the parties' submissions, the Judge settled to find whether the trial court properly handled the trial process when Mwangi was arraigned before it.
Regarding Mwangi's statements, Judge Musyoka found that "Nitawagonga muwe chapati," was not a threat to kill.
"It would simply mean that he would beat them very badly. The phrase is capable of various interpretations, and there was no direct threat there at all in it to kill," the court documents read.
The court however shows that the judge clarified that, "I am not at all saying that the offensive and defiant conduct by the appellant (Mwangi), towards police officers on duty, and possibly in uniform, did not disclose an offence; what I am saying is that the offence, if at all, was not a threat to kill, as defined in section 223(1) of the Penal Code".
Judge Musyoka also found that the particulars as read out in open court were not aligned with those in the charge sheet.
He pointed out that the charges talked of the above statement while what was in the typescript of the proceedings was "Nitwangeni kama chapati," which was no threat, least of all, to kill.
"Whether it was "Nitwagonga kama chapati" or "Nitwangeni kama chapati," the same would not convey the same message as "Nitawagonga muwe chapati".
On warning a person on a plea of guilty, the high court found that the trial court was under no duty to inform Mwangi of the dangers.
It was however expected to exercise precaution to ensure that the plea was unequivocal.
In a judgement dated October 27, Judge Musyoka said he was not persuaded that the charge disclosed an offence of the threat to kill, in the first place, and that Mwangi should not have been asked to plead to it.
Further, the trial court, if it was persuaded that there was a proper or valid charge before it, should have been cautious with recording the guilty plea, as the facts, as read out to the accused, were not aligned to those in the particulars.
Considering this, the judge quashed the conviction and set aside the sentence.
He refrained from issuing an order of retrial, stating that there was no proper or valid charge upon which a retrial could be supported.
"The appellant (Mwangi) shall be released from prison custody unless he is otherwise lawfully held," the judge ordered.