Mokote Manga is a teacher at Malindi Secondary School. He has been arraigned before Jaji Odor, Senior Resident Magistrate at Maundu Law Courts. The offence is that on 16th March 2015, he caned Mwalifu Cheza a form one student on his fore arm and caused a hairline fracture for failing to do his homework. Based on this he is charged with causing grievous bodily harm contrary to Section 234 of the Penal Code punishable by up to 7 years imprisonment and fine of up to Kshs.200,000/-.
(a)Assuming that he wishes to plead guilty, discuss the process he will go through from plea to sentencing. (8 marks)
He pleads Guilty: The procedure for pleading guilty was seminally set out by the seminal case of Aden vs the Republic[1].
The charge and all the essential ingredients of the offence as well as the punishment that accompanies the crime committed should be explained to the accused in his own language or in one that he understands; this is so as to ensure that the accused understands in totality. It is a fatal omission to not read the accused the essential elements of the crime[2].
The accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded; this is so as to ensure that the decision to plea guilty is voluntary. Failure to do so is improper[3]
The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute/explain facts or to add any relevant facts; If the accused does not agree with the facts or raise any question of his guilt, his reply must be recorded and change of plea entered; this is so as to ensure that the chain of causation and the burden of beyond reasonable doubt is proved or linked. It is mandatory to read to the accused the facts[4]
If there’s no change of plea, a conviction should be recorded and a statement of the facts relevant to sentence together with the accused‘s reply should be recorded. The accused will then
(b)Assuming that he does not plead guilty, set out the step by step procedure from the finding of prima facie case to sentencing.
Once the Court determines that a prima facie case has been established, it must, one more time, explain the substance of the charge to the accused person and inform him;
1. That he can give a sworn statement whereby he will be cross examined
2. That he can give an unsworn statement.
Where the accused opts to give an unsworn statement, his or her statement should
be recorded in full by the court and should not be cut short. The accused must be
freely allowed to make his or her defence.
3. That he can remain silent
If the accused person says that he does not intend to give evidence or make
an unsworn statement, or to adduce evidence, then the prosecution may sum up
the case against the accused person
Depending on whichever he chooses, he will open up the defense case.
The accused person or his advocate may then open his case, stating the facts or law on which he intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution. The accused person may then give evidence on his own behalf and he or his advocate may examine his witnesses (if any), and after their cross-examination and re-examination (if any) may sum up his case.
Where the accused elects to call other witnesses, such accused has to give his or her evidence first, followed by the witnesses. This evidence is subject to the same rules as the prosecution in examination- in- chief, cross examination and re-examination.
After this the Court will enter judgement. If it finds the accused not guilty it will acquit. If it finds the accused guilty;
The next procedure will be mitigation whereby the accused is asked to give reasons that may influence the manner of sentencing that is to be applied.
After mitigation, the Court may receive victim impact statements which will show to the court the extent of the accused’s offence.
After that the court will sentence the accused.
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