Lekole s/o Mengwa v. R., Crim. App. 677, 678-D-67, 25/10/67, Biron J.

Lekole s/o Mengwa v. R., Crim. App. 677, 678-D-67, 25/10/67, Biron J.

The two accused, a Wakwavi/Masai father and son, were convicted with three others, all on their own pleas of guilty, of cattle theft. The charge read to them simply stated that all five had stolen 39 head of cattle from a certain ranch; the charge was in Kiswahili, which the father and son do not understand well, and no interpreter was used. Their replies to the charge were: “I took 13 heads of all we stole”; and, “I divided with them ----- I got 9 heads only.” On appeal, the two accused asserted that the others had appeared at their place one night with the cattle, that the father at their place one night with the cattle, that the father had welcomed them as headman of that area, that the others claimed to the traveling to market with their cattle, and that the father and son agreed out of courtesy to fence the cattle temporarily. They said further that they had not understood the charge read to them, and had not known how to present their version of the facts.

            Held: It would be “most unsafe” to uphold these convictions. “(B)efore a plea is accepted as one of guilty, it should express and contain a full and explicit admission of all the facts and ingredients which constitute the offence charged. ……. (T)he facts presented to the court, should comprehend a full account of the commission of the offence and where there are more than one accused the part played by each.” They should not, as in this case, be a mere repetition f the particulars in the charge sheet. Convictions quashed; re-trial ordered, “preferably by a different magistrate.”