The case is to be heard again [ Photo: Courtesy]
Outgoing Kakamega Resident Judge, Ruth Sitati has ordered fresh trial for a bishop who was sentenced to ten years imprisonment after he pleaded guilty to rape.
Andrew Atibo Makokha was convicted after he pleaded guilty to raping a member of his church at Masingo Estate, Kakamega East District, in the name of exorcising demons from her.
In an alternative charge, Atibo was found guilty of committing an indecent act of inappropriately touching the genitalia of a fellow adult without her consent.
He was aggrieved by the sentence and appealed the decision by Senior Resident Magistrate Benson Khapoya.
According to the prosecution, the complainant had informed her mother that she had left for prayers and spiritual at the church and found the accused at the church.
Atibo, who serves at the church, is said to have asked her to undress so that he could chase bad omens and demons that had possessed her. While resisting, the court heard, the man of God forcefully undressed her whilst praying and proceeded to have his way with her.
During appeal, Atibo told the court that the trial magistrate never warned him of the impending consequences and sentence in the event that he was found culpable of the disgraceful offence.
Through his lawyer, he said the magistrate at the lower court erred in law and fact by holding plea of guilty as unequivocal without first inquiring as to his state of mind.
The appellate judge, while quashing the sentence, noted that such a plea of guilty must be taken cautiously and the records must show that the accused understood what he was admitting to.
“The offence is not capital. It is important for the trial court to make it clear to the accused person what sentence is likely to get on pleading guilty to the offence,” said Justice Sitati.
The judge further noted that in his mitigation, the appellant had told the trial court magistrate that the complainant was his friend and they occasionally had intercourse.
“In my considered view, what the appellant stated in his mitigation did not support a plea of guilty. At this point, the trial court should have questioned the appellant whether he wanted to change his plea. The appellant’s statement negated the allegation that he raped the complainant without her consent. The plea of guilty in this case cannot therefore stand,” the Judge said.
Justice Sitati ordered: “I allow the appeal, quash the conviction and set aside the sentence. The case is remitted for fresh trial before the Chief Magistrate.”