Koyet Lemusini and 4 others v Republic 2011 eKLR

Seat of court
Court jurisdiction
Date of opinion

The five appellants have been charged on the aforesaid Count Nos. 2 and 4. The Court, to which the appeals have been made, noted "certain glaring anomalies" with the court of first instance's verdict.
On 22 December 2010, the charges were read out to the accused, and they pleaded guilty to the aforesaid counts. The facts were however not read out to the accused as required by law. Instead the prosecutor merely stated:
"May the particulars be as per the charge sheet on count 2 and 4. May the accused be treated as first offenders"
There are three issues the Court raises pertaining to the actions of the prosecutor:
1. To declare facts as to be "as per charge sheet" does not fulfill the legal requirement that the facts be read out and explained to the accused.
2. None of the accused indicated whether or not they accepted those facts as true.
3. The learned trial magistrate did not record a conviction against any of the accused as is required by S. 207(2) of the Criminal Procedure Code.
The magistrate merely proceeded to impose the sentence. A sentence imposed in the absence of a conviction is a nullity. Furthermore, the court of first instance did not accord each accused the opportunity to mitigate as required by law, as the record indicates: "Mitigation - none".
The magistrate ought to have called upon each accused to make a statement in mitigation before imposing the sentence. This renders the sentences imposed in respect of those two counts null and void. Hereby, the Court quashes the purported convictions of the five accused on Count Nos. 2 and 4 only, while Count Nos. 1 and 3 are not affected by this revision. (Provided by. UNODC SHERLOC)

Language of document
Reference number
DMCC 783/2010