Simon Maregwa Githiru v. Republic

The Applicant suffered from pulmonary tuberculosis. He defaulted on his treatment and was charged with wilfully exposing and spreading infectious disease to the community in violation of the Public Health Act. When the facts and the charges of his case were read to the Applicant, he simply stated ‘It is true’ and ‘Facts as charged’. This statement was entered as a guilty plea and the Applicant was sentenced to six months in prison. He appealed.

The Court noted that it was not clear whether the Applicant's statements were intended to confirm that he had tuberculosis, to confirm that he had defaulted on his treatment for tuberculosis, or to admit guilt in exposing the public to the disease. The Court stated that the Prosecutor had not adequately stated the facts of the offence and had not given the Applicant an opportunity to dispute or explain the facts or add additional facts. The Court noted that the Applicant was a first-time offender and should not have been sentenced to imprisonment. It further declared that the lower court should have “empathised” with the Applicant given his medical condition. The Court quashed the conviction, set aside the sentence and ordered the Applicant released.

"It is not clear whether the Applicant was saying 'It is true' because he had TB, or that he not sought treatment, or that he had exposed the disease to the public. It was equally imperative for the court to ask the Prosecutor to state the facts of the alleged offence and after that to give the Applicant an opportunity to dispute or explain the facts or to add any relevant facts. The Prosecutor did not discharge its responsibility when he merely said 'Facts per charge.' In short, this plea was not satisfactorily taken." Page 3.

"One wonders why the court did not empathise with the Applicant who was a TB patient. The court should have considered the wide range of non-custodial sentences provided under section 24 of the Criminal Procedure Code." Page 3.