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Court of AppealPartially AllowedCriminal Appeal (not specified in judgment)· [2023] KECA 916 (KLR)

Amos Memusi Kiok v Republic

Court of Appeal of Kenya
28 July 2023
FSF. SichaleFOF. OchiengWKW. Korir
2,684 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a man who served 10 years because the trial record never showed which of two charges he actually pleaded guilty to.

What this practically means

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Executive summary

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This was a second appeal by Amos Memusi Kiok against his conviction on a plea of guilty to two counts - defilement of an 8-year-old boy and committing an indecent act with the same boy - and a sentence of life imprisonment imposed by the Senior Resident Magistrate's Court, Narok. The High Court (Omondi J) had dismissed the first appeal on 19 May 2014, upholding both conviction and sentence. Before the Court of Appeal, the appellant argued that the plea was equivocal because the record did not show which of the two counts he pleaded to, that the language of the plea-taking was not properly established, that he was not informed of his right to counsel under Article 50(2)(g) and (h), that the charge sheet cited a non-existent provision, and that the conviction contravened Section 169(2) of the Criminal Procedure Code. The respondent contended that after a plea of guilty only sentence was appealable under Section 348 CPC. The Court held that the plea was unequivocal and that the appellant had understood the charge in Maasai, but found that the record failed to disclose which count the plea was entered on and which offence the conviction specified - an irregularity necessitating a retrial and a mis-trial under Section 169(2). The Court quashed the conviction and set aside the sentence but declined to order a retrial, given that the appellant had spent over ten years in custody and the complainant's youth at the material time, and ordered his immediate release unless otherwise lawfully held. No costs order was made.

Key legal issues

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01

Whether the plea of guilty was equivocal

Holding

The plea was unequivocal; the charge was read to the appellant in Maasai and he admitted the facts and mitigated, even though the language note appeared at the tail end rather than the commencement of the plea

Reasoning

Although the record did not show any inquiry into the appellant's preferred language, the record later indicated 'Explained in Maasai by Sekut'. The appellant admitted the facts and gave coherent mitigation. Whether a plea is unequivocal depends on the circumstances of each case; here the circumstances showed understanding of the charge.

p. 5
02

Which count the plea and conviction related to

Holding

The record failed to show which offence the appellant pleaded to and which offence he was convicted of, an irregularity necessitating a retrial and a mis-trial under Section 169(2) CPC

Reasoning

The appellant faced two distinct counts carrying different penalties (life imprisonment under Section 8(1)(2) and not less than ten years under Section 11(1)), committed on different dates. The court could not tell which count the plea was entered on or which offence the conviction specified, offending Ombena and Section 169(2).

p. 5
03

Sentence and retrial

Holding

The conviction was quashed and the sentence set aside, but no retrial was ordered given the appellant's ten years in custody, the availability of witnesses, and the complainant's age at the time

Reasoning

Having found the conviction unsustainable, the court weighed the interests of justice: over ten years already served, witnesses possibly unavailable, and the unfairness of making the complainant relive his ordeal as an 8-year-old. A retrial would not serve the interests of justice, so the appellant was set at liberty.

p. 6

Legal principles established

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  • A second appellate court is confined to matters of law and will not interfere with concurrent findings of fact unless based on no evidence, a misapprehension of the evidence, or wrong principles
  • Where an accused is charged with more than one count, the trial court must take and record a separate plea on each count; failure to indicate which count the plea relates to is an irregularity necessitating a retrial
  • On a plea of guilty, an appellate court may interfere where the plea is imperfect, ambiguous or unfinished, where it resulted from mistake or misapprehension, where the charge disclosed no offence, or where the accused could not in law have been convicted on the admitted facts
  • Good practice in plea-taking requires the court to establish and record the language the accused understands before using it or providing a translator

Court orders

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  1. 1.The appeal is allowed
  2. 2.The conviction is quashed and the sentence is set aside
  3. 3.The appellant be forthwith set at liberty unless otherwise lawfully held
On appeal from
High Court of Kenya
not specified
Jurisdiction invoked
Second appeal under Section 361(1)(a) of the Criminal Procedure Code

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, "Amos Memusi Kiok v Republic", Case Analysis (2023). Criminal Appeal (not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/916/eng@2023-07-28

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