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Court of AppealPartially AllowedNot stated in the judgment

Harrison v Republic (Criminal Appeal 104 of 2015) [2023] KECA 495 (KLR)

Court of Appeal of Kenya
12 May 2023
2,527 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal freed a man who served 12 years because his guilty plea was recorded improperly, including failing to confirm the language he understood.

What this practically means

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Executive summary

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This is a second appeal by Alex Kibet Harrison, who was convicted on his own plea of guilty in the Resident Magistrate's Court at Nakuru for defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and sentenced to 20 years' imprisonment. His first appeal to the High Court failed, the learned Judge holding that the appellant had understood the Kiswahili proceedings. The Court of Appeal, confined by section 361 of the Criminal Procedure Code to matters of law, framed a single issue: whether the plea of guilty was unequivocal. Applying the Adan v Republic plea-taking procedure and Mose v R, the Court held that although the record stated the charge was read in a language the appellant understood, the trial court never asked him to state that language, he was not given the required opportunity to dispute or explain the facts, he pleaded guilty to both the main and alternative counts leaving the offence of conviction unclear, and no mitigation was recorded. The Court respectfully disagreed with the High Court and found the plea not unequivocal and the appellant possibly disadvantaged by a language barrier. Having so found, the Court declined to consider whether the sentence was harsh or excessive. On disposition, applying Muiruri v Republic, the Court held that with approximately 12 years elapsed since arraignment and incarceration, the interests of justice would not be served by a retrial. The appeal was allowed and the appellant ordered set at liberty forthwith unless otherwise lawfully held.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plea of guilty by the appellant was unequivocal
  2. 2.Whether the appellant understood the language used during plea taking
  3. 3.Whether the appellant was a juvenile when charged
  4. 4.Whether the sentence imposed was harsh and excessive
  5. 5.Whether to acquit or order a retrial

Key legal issues

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01

Whether the plea of guilty was unequivocal

Holding

The plea was not unequivocal: the record did not show the appellant was asked what language he understood, he was not given an opportunity to dispute or explain the facts, he pleaded guilty to both the main and alternative counts so the offence of conviction was unclear, and no mitigation was recorded

Reasoning

The court applied the Adan plea-taking procedure and Mose v R, holding that 'it is true' alone is not an unequivocal plea. The record showed the charge was read 'in a language he understands being Kiswahili' but the court never asked the appellant to state the language he understood. The dual pleas of guilty to the main and alternative counts created ambiguity as to the offence of conviction, and the silence on mitigation left open whether the language barrier hampered the appellant.

p. 5
02

Whether to acquit or order a retrial

Holding

The appeal was allowed and the appellant set at liberty; a retrial was refused because about 12 years had elapsed since arraignment and incarceration

Reasoning

Applying Muiruri v Republic, the court weighed the omissions in the original trial against the length of time elapsed. Having been charged, convicted and sentenced on August 10, 2011, and having served approximately 12 years, the interests of justice would not be served by remitting the case for rehearing, so the appellant was set at liberty.

p. 5

Legal principles established

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  • On a second appeal, the Court is confined to matters of law and will not interfere with concurrent findings of fact unless based on no evidence or a misapprehension of the evidence
  • A valid plea of guilty requires that the charge and all essential ingredients be explained to the accused in a language he understands, the accused's own words recorded, facts stated and the accused given an opportunity to dispute or explain them before conviction
  • The words 'it is true' standing on their own do not constitute an unequivocal plea of guilty; every constituent ingredient of the charge must be explained and the accused required to admit or deny each
  • A court must itself satisfy itself that the accused understands the language of the proceedings; it may not simply assume this from the accused's responses
  • A retrial will only be ordered where the interests of justice require it and it is unlikely to cause injustice, having regard to defects in the original trial, time elapsed, and whether the errors were of the prosecution's making

Court orders

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  1. 1.Appeal allowed
  2. 2.Appellant to be set at liberty forthwith unless otherwise lawfully held

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court
Not stated in the judgment
Jurisdiction invoked
Second appeal to the Court of Appeal on matters of law under Section 361 of the Criminal Procedure Code

Relief refused

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Determination of whether the sentence was harsh or excessive

The plea of guilty having been found not unequivocal, it was unnecessary to consider the sentence

p. 5

Remittal to the trial court for retrial

Approximately 12 years had elapsed since arraignment and incarceration; the interests of justice would not be served by a retrial

p. 5

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The words "it is true" standing on their own did not constitute an unequivocal plea of guilt. It was desirable that every constituent ingredient of the charge be explained to the accused so that he should be required to admit or deny every constituent.
p. 4Unequivocal plea of guilty
nowhere in the record was the appellant asked by the court to state the language he understood. The appellant was also not given an opportunity to explain or dispute or add anything relevant as required
p. 4Plea taking and language of the accused
we find and hold first that the appellant may have been disadvantaged by a language barrier during plea taking and secondly that the plea of guilty was not unequivocal.
p. 5Finding on the plea
We therefore, allow this appeal and order that the appellant be set at liberty forthwith unless otherwise lawfully held.
p. 5Final orders

Issues in the judgment

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minor

The judgment cites Adan vs R with two different years and citations: '(1975) EA 445' in the submissions and '[1973] EA 445' in the court's own citation

minor

The judgment contains typographical errors rendering the record unclear in places, e.g. the description of the facts as captured

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Harrison v Republic (Criminal Appeal 104 of 2015) [2023] KECA 495 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/495/eng@2023-05-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.