Guilty plea now not acceptable by Court of Appeal in Kenya

Appellate Judge Roselyn Nambuye. The judge along with fellow appellate judges Justice Philip Waki and Patrick Kiage said the heart of a criminal trial is the tendering of evidence by the prosecution in an attempt to establish the charge and not necessarily convicting one upon his own plea of guilty. (PHOTO: COURTESY) 

Court of Appeal Judges have ruled that a plea of guilty cannot be accepted unless it is satisfied that it was entered consciously, freely and in clear and unambiguous terms.

Appellate Judges, Justice Philip Waki, Roselyn Nambuye and Patrick Kiage said the heart of a criminal trial is the tendering of evidence by the prosecution in an attempt to establish the charge and not necessarily convicting one upon his own plea of guilty.

They said criminal process is designed for forensic investigations and determination of guilt with various rights and safeguards built into it to ensure that only the guilty get to be convicted.

Evidence given on oath and tested on trial through the process of cross-examination they stated provided the accused person a chance to confront his accusers and make submissions to the court that s/he is not guilty of the alleged matter.

To them the burden of proving the case lied on the prosecution which is expected to prove the charge against an accused person beyond reasonable doubt to have a person convicted.

Given all the safeguards available to an accused person through the process of trial, the entry of plea of guilty they said presents a rare absolute agreement.

Throwing in of a towel by the accused persons and admitting to charges they said is giving of walkover to the prosecution and served a great loss to the accused.

"Throwing in of a towel by the accused persons is giving a walkover to the prosecution and serves a great loss" said the judges.

They said there was need to ensure accused persons understand the proceedings and in particular the charge one is facing.

The court taking plea is required to read and explain to the accused the charge and all its ingredients in a language one understands.

A plea of guilt by one arraigned in court should not be plain and ambiguous in order to form a basis for conviction and sentencing.

In an appeal presented before them on Thursday November 17, 2016 to determine the fate of a man Elijah Njihia who was sentenced to life imprisonment by a Nyahururu Principal Magistrate's court after pleading guilty to defiling a 7 year old, the judges said it was disturbing to see how courts handled cases at plea stage.

The parts of the courts proceeding read, "The substance of the charge(s) and every element hereof has been stated by the court to the accused in a language that he understands who being asked whether asked whether he admits or denies the truth of the charge, replied in Kiswahili- it is true."

The judges said this seems part of a template used by courts at plea taking hence addressing issue of 'charge(s)' instead of a single charge and rather odd 'in a language he understands' instead of simply stating the language used.

They said the process and stating smacked a mere recital of rituals.

In their thinking they saw it a good practice for the specific language used in stating the elements of the charge stated specifically and established by asking the accused person what language he understands and according to his answer using it or ensuring a translator is present to convey the proceedings.

Elements of the offense they said are not complete especially if the sentence is severe and mandatory and not brought to the attention of the accused person. To them it served right for one to know the consequences of his trial.

In the case of Njihia, it came to light that the process was not followed as after the charge(s) was read to him, the facts were presented and he was conviction immediately passed.

Explanations as to what complications the charge entailed were not brought to his attention. His mitigation however didn't trigger questions on his mental status.

In mitigation it is alleged that the man said the child was the only option he saw as he lived alone in his house.

It later emerged that the man had developed a mental problem. In report dated February 25, 2010, presented in court by Njihia's lawyer he had suffered mental problem as a result of bhang and alcohol abuse.

The judges said the process used in prosecuting him was solicitous of his welfare.

"One ought to know the consequences of his virtual waiver of his trial rights and what the constitution guarantees, that didn't occur here calling upon the trial court, be particularly solicitous of his welfare" read the appeal judgment.

They said the presiding magistrates' in court are not to be mere umpires aloofly observing the proceedings. They are instead expected to act protectors and guarantors and educators of the process and ensure unrepresented persons were not lost at sea in the maze of the often intimidating judicial process.

The judges said such pleas could not stand and quashed Njihia's conviction, the sentence was set aside.

They instead set the cloak back and ordered the process restarted on proper footing. They directed that he be presented before the Principal magistrate's court in Nyahururu within 14 days for purposes of taking plea of the charge.