Mwasama v Republic

rule did not invalidate the proceedings. The Court, however, reduced the sentence from 60 years to 35 years' imprisonment, eective 29 September 2020, after clarifying that Francis Muruatetu & Another [2017] eKLR abolished only the mandatory, not the substantive, death penalty. 3. The appellant led his second appeal to this Court raising 6 grounds of appeal. The Appellant contends that the learned judge erred in upholding his conviction despite violations of his fair trial rights. He argues that, as a 19-year-old facing a capital charge, he was denied legal representation under Articles 50(2)(g) and (h) of the Constitution; that the trial court failed to exercise the heightened caution required when taking a guilty plea from an unrepresented accused; that the mitigation process was defective due to inadequate explanation and a language barrier; and that the proceedings, having been concluded in a single day, were rushed and denied him a fair hearing. 4. At the plenary hearing, the Bench repeatedly cautioned the appellant that proceeding with the appeal exposed him to the risk of sentence enhancement. Learned counsel, Mr. Menezes, informed the Court that, notwithstanding the warning and his advice, the appellant had elected to proceed with the hearing of the appeal. Counsel relied on the written submissions, contending that the appellant's rights under Articles 50(2)(g) and (h) of the Constitution were violated as the trial court failed to inform him of his right to legal representation and State-funded legal aid despite his facing a capital charge. It was his further contention that the plea was not taken with the heightened caution required for an unrepresented accused person, the proceedings having been concluded in a single day without an adequate explanation of the nature and consequences of the charge or a meaningful mitigation process. 5. Learned Prosecution Counsel, Mr. Otieno, conceded the appeal. He submitted that the trial court failed to expressly inform the appellant that a conviction upon his guilty plea to robbery with violence attracted the death penalty, merely cautioning him that the sentence was "severe," contrary to established legal principles. He further conceded that the trial court failed to comply with Section 43 of the Legal Aid Act by informing the unrepresented appellant of his right to legal representation and State-funded legal aid. In the respondent's view, these procedural defects occasioned prejudice to the appellant and warranted the quashing of the conviction and an order for a retrial in the interests of justice. 6. This being a second appeal, our jurisdiction when considering such appeals is provided for under section 361 of the Criminal Procedure Code which mandates us to consider only matters of law in the appeal, and not delve into factual matters on which the two courts below reached concurrent ndings. This Court in Karani v. Republic [2010] 1 KLR 73 held thus; This is a second appeal. By dint of the provisions of section 361(1) of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the Superior court on facts unless it is demonstrated that the trial court and the rst appellant Court considered matters, they ought not to have considered or they failed to consider matters they should have considered or looking at the evidence as a whole, they were plainly wrong in their decision in which case such omission or commission would be treated as a matter of law.” 7. Having considered the record, the grounds of appeal, the submissions of both parties and the Court’s mandate, the issues that falls for determination are; i). Whether the appellants right under Article 50 (2) (g) (h) were violated. ii). Whether the appellant’s plea was unequivocal and iii). Whether the sentence meted out on the appellant was lawful https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1926/eng@2026-09-25 2

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8. Article 50(2)(h) of the Constitution of Kenya guarantees the right to legal representation at state expense if substantial injustice would otherwise result. The Legal Aid Act, 2016, in Section 43, mandates courts to inform accused persons of this right. We are minded of the decision in David Njoroge Macharia v Republic [2011] eKLR, where this Court stated that: “ Under the new Constitution, State funded legal representation is a right in certain instances. Article 50(1) provides that an accused shall have an advocate assigned to him by the State and at state expense, if substantial injustice would otherwise result (emphasis added). Substantial injustice is not dened under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6). Therefore, provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory. We are of the considered view that in addition to situations where “substantial injustice would otherwise result”, persons accused of capital oences where the penalty is loss of life have the right to legal representation at state expense. We would not go so far as to suggest that every accused person convicted of a capital oence since the coming into eect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided. The reasons are that, rstly, the provisions of the new Constitution will not apply retroactively, and secondly every case must be decided on its own merit to determine if there was serious prejudice occasioned by reason of such omission.” 9. In Republic v Karisa Chengo and 2 others [2017] eKLR, the Supreme Court of Kenya expressed that the right to legal representation at the State’s expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more but that “in accordance with the language of the Constitution, this particular right is not open ended. It only becomes available “if substantial injustice would otherwise result”. In addition, the apex Court went on to say that the right to legal representation is not limited to cases where the accused person is charged with a capital oence; that the operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result….” and that “the protection embedded in Article 50 (2) (h) goes beyond capital oence trials”. This therefore means that the standard operating procedure requires that an accused person be informed prior about their right to legal representation. 10. In the present case, it is evident that when the appellant took plea on the 27th June 2019, the trial court never informed him of his right to legal representation. The appellant submitted that at his young age and considering the severity of the oence, this failure amounted to a prejudice against him. 11. Nevertheless, aside from the fact that these issues were not addressed in the trial court, it is evident from the manner in which the trial magistrate conducted the plea taking that the appellant was well informed of the charges brought forth against him and the attendant consequences. We note that the trial was conducted in a language of his choice, Kiswahili, that he was cautioned on the severity of the sentence after initially pleading guilty after which the charge was read out again and he still pleaded guilty; that similarly after the facts were read out to him, the appellant still pleaded guilty. This overall conduct during the trial demonstrates that no injustice, let alone substantial injustice, stemmed from the trial court's failure to inform the appellant of his rights under Articles 50(2)(g) and 50(2)(h) of the Constitution. Therefore, the trial court's omission in notifying the appellant of his rights to legal representation should not serve as grounds for invalidating his trial. We thus nd no merit on this limb. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1926/eng@2026-09-25 3

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12. As to whether the plea of guilty was unequivocal, the procedure for taking plea is provided under section 207 of the Criminal Procedure Code which provides as follows; 1. The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement. 2. If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sucient cause to the contrary: Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded. 13. The law and practice regarding the taking and recording of pleas of guilt was stated in the following iconic paragraph in the decision in Adan v Republic (1973) EA 445 at 446When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the oence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged oence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilty, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused's reply must, o course, be recorded.” 14. In this case, we have read the record of the trial court. It is clear from the proceedings that the charge and every element thereof was read and explained to the appellant in a language he understood which was Kiswahili as the interpretation was stated to be from English to Kiswahili. The record shows that in response to the charges, the appellant stated: “It is true” in the Swahili language; and after the facts were read out to him, he admitted them as true and correct. A perusal of the facts admitted by the appellant show that they disclosed all the elements of the oence with which he was charged. 15. The record further reveals that the trial magistrate cautioned the appellant on the severity of the charge and attendant sentence after which the charge was read out to him for a second time with the appellant stating: “It is true”. The facts were then read out and the appellant still responded in his guilty plea. 16. Mr. Otieno impugned the appellant’s guilty plea stating that the same was not unequivocal as the trial magistrate failed to specically warn the appellant of the death sentence the charge carried. He insisted that the warning given by the trial magistrate that the appellant faced a severe sentence was not sucient. We do not agree with the learned Prosecution Counsel. It is our considered view that the trial magistrate took extra caution in ensuring that the appellant understood the consequences of the charge brought against him and the eect of pleading guilty. This act cannot be nullied on dierence https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1926/eng@2026-09-25 4

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in semantics as implored by learned Prosecution Counsel. We therefore nd that the appellant’s plea was unequivocal. 17. Finally, as to whether the sentence imposed on the appellant for the oence of robbery with violence was unlawful, we note that the trial court initially sentenced the appellant to serve 60 years’ imprisonment which was substituted to one of 35 years by the Superior Court. 18. Section 296 (2) of the Penal Code provides the sentence for the oence of robbery with violence as death. The Supreme Court claried in Muruatetu & Another vs. Republic; Katiba Institute & 4 Others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6th July 2021) (Directions) (“Muruatetu 2”), that the principles in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) (Muruatetu 1) applied solely to murder cases. The Court stated that: “ The decision in Muruatetu applies only in respect to sentences for murder under Sections 203 and 204 of the Penal Code. Courts remain bound by the mandatory sentences prescribed for other oences unless and until declared otherwise by the Supreme Court.” 19. Similarly, in the case of Wamwoma vs. Republic (Criminal Appeal 19 of 2018 [2024] KECA 546 (KLR) this Court stated as follows: “ On the issue of sentence, the appellant was sentenced to the mandatory death sentence as provided for the oence of robbery with violence under Section 296(2) of the Criminal Procedure Code. The appellant contended that the sentence imposed upon him was unconstitutional. However, in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (amicus curiae) (2021) eKLR, (Muruatetu 2), the Supreme Court claried that notwithstanding its holding in Muruatetu that the mandatory nature of the death sentence under Section 204 of the Penal Code is unconstitutional, the death sentence in regard to the oence of robbery with violence under Section 296(2) remains valid until the constitutional validity of that sentence is fully argued before the High Court and escalated to the Court of Appeal. As this is yet to be done, the sentence of death that was imposed upon the appellant remains a lawful sentence.” 20. Furthermore, the Supreme Court of Kenya emphasized in the case of Republic vs. Joshua Gichuki Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) that until a challenge to mandatory sentences is taken up before the courts all the way to the Supreme Court, such sentences are lawful and cannot be interfered with. 21. From the foregoing, it is clear that the sentences meted out by both the trial court and High Court are thus unlawful; and we are under an obligation to interfere with the sentence. The appellant having been suciently warned of the possible enhancement of sentence, we are left with no resort but to proceed to enhance the appellant’s sentence to death. 22. The upshot of all the above is that this appeal lacks merit and is dismissed. The appellant’s sentence is enhanced from the term imprisonment that had been imposed to the legally recognized sentence of death as by law provided. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ....................................... https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1926/eng@2026-09-25 5

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JUDGE OF APPEAL H. A. OMONDI ....................................... JUDGE OF APPEAL L. KIMARU ....................................... JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1926/eng@2026-09-25 6

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