(Being an appeal from the Judgment of Hon. J.D Karani delivered on 31 st July, 2023 in SPM Court Makindu Sexual Offence Case No. 111 of 2021)
1. The Appellant was charged with the offence of Defilement contrary to section 8 (1) as read with Section 8 (4) of Sexual Offences Act, No. 3 of 2006. The particulars are that, the Appellant, on the diverse dates between December 2020 and November 2021 at Msongeni area, Makindu location in Makindu sub County within Makueni County, intentionally and unlawfully caused his penis to penetrate the vagina of P.K.M a child aged 16 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars are that, the Appellant, on the diverse dates between December 2020 and November 2021 at Msongeni area, Makindu location in Makindu sub County within Makueni County, intentionally and unlawfully touched the vagina of P.K.M a child agaed 16 years with his penis.
3. According to the record, the Accused first pleaded not guilty and the matter proceeded for hearing. At the close of the prosecution’s case, the Court found that the Appellant had a case to answer and he was placed on his defense. He gave sworn evidence in his defense. Thereafter, the record shows that the Appellant told the Court that he wanted to admit to the charges. The court entered a plea of guilty, and convicted him. He was sentenced him 15 years imprisonment.
4. The Appellant was dissatisfied and brought this appeal against both the conviction and the sentence. He listed the following grounds of appeal;
1) That the Appellant pleaded not guilty to the charges.
2) That the trial magistrate grossly erred in law and facts in relying on suspicious and fictitious evidence of PW1 and without noting that PW1 was coerced and subjected to duress thus incriminating the Appellant.
3) That the trial magistrate erred in law and facts in relying on hearsay evidence adduced by prosecution witnesses and failed to note that the charges against the Appellant were born out of malice and ill-will.
4) That the trial magistrate erred in law and facts in convicting on mere allegations and presumptions and holding the testimonies of the prosecution witnesses as truthful and free from doubtful without noting that there was a grudge between the parents of the complainant and the Appellant; in that the parents of the complainant had knowledge that the Appellant was married to their daughter, whom they told the Appellant was over 18 years of age and we agreed in paying dowry in instalments. Appellant’s non-compliance of paying the same due to economic difficulties of life created a grudge where they decided to change and disclose the age of their daughter to be 17 years. The complainant had deceived the Appellant into believing that she was over 18 years of age at the time of the alleged commission of the offence and the Appellant reasonably believed that the Complainant was over 18 years.
5) That the trial magistrate gravely erred in law and facts by failing to note that the case was grounded on extortion by the parents of the victim, thereby prosecution occasioned to a miscarriage of justice.
6) That the learned trial magistrate failed to test the evidence of prosecution witnesses and caution the circumspection thereby convicting on flimsy, inconsistent and evidence that was not water tight enough and lacked probative values to justify a conviction.
7) That the trial court erred in law and fact by not observing that there were no substantive investigations by the I.O thereby basing the conviction on mere allegations and fabrication. In that, have been with the said complainant as his wife with the consent and knowledge of her parents, and we were blessed with a child in the year 2022 who is now more than a year of age. There was no any report from the teacher to prove that she was a student in any particular school. He acted in mala fides while handling the matter.
8) That the trial magistrate erred in law and fact by not finding that the evidence of the complainant as adduced in court and also the long period and also the long period of delay in not reporting the incidence in reasonable times raised sufficient doubt as to occurrence of the incident which renders this as an afterthought and the doubt should have been resolved in Appellant’s favour.
9) That the trial court erred in law and facts by shifting the burden of proof to the Appellant; in that it is trite law that an accused person should only be convicted on the strength of the prosecution evidence and not on the weakness of his defense.
10) That the trial magistrate erred in law and fact as he deliberately overlooked that the witnesses gave false evidence despite the fact that they were under oath to tell the truth and also overlooked the cross-examination of the defense counsel, which was biased and in favor of the prosecution.
11) That the trial magistrate erred in law and facts by failing to find that the prosecution had not proved its case beyond any reasonable doubt as required by law and also failed to scrutinize and evaluate the prosecution evidence thereby arriving at an erroneous decision.
12) That the sentence imposed upon the Appellant was harsh and excessive based on the circumstances and contravened the provisions of Article 47 of the Constitution.
13) The Appellant is very much remorseful before this Honourable Court. He prayed leniency and that may the entire judgment and the sentence imposed be set aside and set him as liberty. In that, he is the sole breadwinner of his family and he was worried about their welfare since they were dependent on him and he was taking care of them. His incarceration is a threat to them.
5. He asked this Court to allow the appeal in its entirety, quash the conviction, set aside the sentence, and set him free.
6. The Appeal was canvassed by way of written submissions. The parties filed their respective submissions, and the same have been considered at length. Essentially, the parties dispute whether the Appellant pleaded guilty to the offence. The Appellant submitted that he did not plead guilty, while the Respondent maintains that he pleaded guilty to the offence.
Issues for Determination
7. Having considered the Grounds of Appeal and the submission of the parties, I find that there are two issues for determination;
a) Whether the Appellant’s plea of guilty was unequivocal.
b) Whether the Sentence imposed was proper.
8. The general rule is that there is, ordinarily, no appeal against conviction resulting from a plea of guilty. In these instances, the law only permits an appeal regarding legality of sentence. However, Courts have created exceptions where a court may interfere with a conviction resulting from a plea of guilty. The Court of Appeal enumerated these exceptions in Alexander Likoye Malika v Republic [2015] KECA764 (KLR) , where the Court held as follows;
May we, by way of commentary only remind that there is ordinarily no appeal against conviction resulting from a plea of guilty – See Section 348 of the Criminal Procedure Code which only permits an appeal regarding legality of sentence. A court may only interfere with a situation where an accused person has pleaded guilty to a charge where the plea is imperfect, ambiguous, or unfinished such that the trial court erred in treating it as a plea of guilty. Another situation is where an accused person pleaded guilty as a result of mistake or misapprehension of the facts. An appellate court may also interfere where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to law. Also where upon admitted facts the appellant could not in law have been convicted of the offence charged.
9. The Appellant submitted that he did not plead guilty and that the trial court was wrong to interpret his plea as such.
10. Section 207 of the Criminal Procedure Code outlines the procedure that is to be followed during plea taking. It provides that:
1. The substance of the charge shall be stated to the accused person by the court and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement.
2. If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the count shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary:
Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded.
11. The manner of recording plea of guilty was dealt with in Ombena vs. Republic [1981] eKLR where the Court of Appeal held that:
“In Adan v Republic [1973] EA 445, the Court of Appeal laid down in the simplest and plainest terms the manner in which pleas of guilty should be recorded and the steps which should be followed. It is appropriate to set out the holding in full —
‘Held:
(i) the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;
(ii) the accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded;
(iii) the prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;
(iv) if the accused does not agree with the facts or raises any question of his guilt his reply must be recorded and change of plea entered;
(v) if there is 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.”
In this case it is not certain that the prosecutor stated the facts, or that the appellants were given an opportunity to dispute or explain the facts or to add any relevant facts. The bald record that the prosecutor said “Facts are as per charge sheets”, and that the charge was read over and explained a second time, is not in our view sufficient to enable us to be satisfied that the pleas were unequivocal. In the Adan case the court said, at p 447:
“The statement of facts serves two purposes: it enables the magistrate to satisfy himself that the plea of guilty was really unequivocal and that the accused has no defence and it gives the magistrate the basic material on which to assess sentence. It not infrequently happens that an accused, after hearing the statement of facts, disputes some particular fact or alleges some additional fact, showing that he did not really understand the position when he pleaded guilty: it is for this reason that it is essential for the statement of facts to precede the conviction.”
We are aware of how busy magistrates and judges are in this part of the world and it may be that the record does not do full justice to the proceedings as they were conducted. However we have to judge by the record as it is. In this case we are not satisfied that the pleas of the appellants can be safely accepted as unequivocal pleas of guilty, or that the convictions can safely be allowed to stand.”
Whether the Appellant’s plea of guilty was unequivocal
12. Before I make a determination on this issue, I shall first set the stage by stating the facts on what transpired at the lower court on the day that the Appellant is alleged to have pleaded guilty. I shall reproduce the record of the Court on 3 rd July, 2023, when the alleged plea of guilty was entered. This is what transpired;
03.07.2023
……………………..
Accused: I wish to admit to the charges I am facing.
Court: Charges read over to the accused in Kiswahili and he replies.
Accused: Ni ukweli.
Court: Plea of guilty is entered.
J.D. KARANI.
SENIOR RESIDENT MAGISTRATE
Prosecutor: I adopt to that evidence by witness in state case.
Accused: Maelezo yote ya case ni ya ukweli.
Court: Convicted on own plea of guilty.
Prosecutor: No representative.
Accused in mitigation: It was bad luck for us to get the child. I am now fully responsible for the child and her mother. I ask court leniency.
Court: Mitigation is considered. Matter referred for social impact report and victim impact report. Mention 24.07.2023. Accused remanded in custody.
J.D. KARANI
SENIOR RESIDENT MAGISTRATE
03.07.2023
13. In determining whether the above plea of guilty was unequivocal, I am guided by several court decisions that have given useful guidance on this issue.
14. In Irungu v Republic (Criminal Appeal E010 of 2024) [2025] eKLR , the Court faulted the trial magistrate for failing to explain to the Accused person the possible consequences of pleading guilty. It observed;
“The only error of omission the learned trial magistrate committed was failing to explain to the appellant the possible consequences of pleading guilty considering that he was unrepresented. Given that the offence facing him was one that was likely to attract a custodial sentence, the learned trial magistrate ought to have taken extra caution to ensure that the appellant not only understood the charges facing him but was also aware of the consequences of pleading guilty to the charge. If after such an explanation which should be captured on record the appellant maintained his plea of guilty, then his plea would no doubt be unequivocal.
In view of the foregoing, I find that the trial court’s failure to explain to the accused the consequences of pleading guilty to the charges that had been read over to him made his plea equivocal and this amounts to sufficient basis for vitiating his conviction .”
15. Similarly, the Court in Abdallah Mohammed vs. Republic [2018] eKLR observed as follows;
“In a case where an accused person who is undefended pleads guilty to a charge, the court has a duty to ensure that the plea is unequivocal . As pointed out, the Appellant had no legal representation and the trial court ought to have taken steps to ensure that the Appellant understood every element of the charge and the facts read out to him. He also ought to have been warned, and that warning captured on record, that the offence he was about to plead to carried a prison sentence of not less than fifteen years.
……From the record, it is apparent that the Appellant was just but a lad aged 21 years and the trial court ought to have gone the extra mile to ensure he understood the consequences of entering a plea of guilty.”
16. Lastly, the Court in Simon Gitau Kinene v Republic [2016] eKLR held this view that extra caution needs to be taken in the case of undefended defendants who plead guilty. The Court held;
“19. Finally, courts have always held that extra caution needs to be taken in the case of undefended defendants who plead guilty. I have previously held that where an Accused Person is unrepresented, the duty of the Court to ensure the plea of guilty is unequivocal is heightened. In Paulo Malimi Mbusi v R Kiambu Crim. App. No. 8 of 2016 (unreported) this is what I said and I find it relevant here:
In those cases [where there is an unrepresented Accused charged with a serious offence], care should always be taken to see that the Accused understands the elements of the offence..….To put it plainly, then, one may add that where an unrepresented Accused Person pleads guilty to a serious charge which is likely to attract custodial sentence, the obligation of the court to ensure that the Accused Person understands the consequences of such a plea is heightened. Here, the Court took no extra effort to ensure this. In these circumstances, given the seriousness of the charge the Court was about to convict and sentence the Accused Person for, it behooved the Court to warn the Accused Person of the consequences of a guilty plea.”
17. All the above authorities underscore the principle that the trial court is required to explain to unrepresented accused persons the consequences of entering a plea of guilty, and particularly where the charge attracts a custodial sentence.
18. In the present case, the Appellant was charged under Section 8 (1) as read together with Section 8 (4), which attracts a mandatory minimum sentence of not less than fifteen years. In addition, the Appellant was unrepresented at the lower court. Thus, based on the above stated authorities, the duty of the trial court to explain to accused persons the consequences of entering a plea of guilty was applicable in this case.
19. From the record, and the extract reproduced above, it is clear that the court did not take extra effort to ensure that the Appellant knew the consequence of entering a plea of guilty. The trial magistrate ought to have been warned, and that warning captured on record, that the offence the Appellant was about to plead to carried a prison sentence of not less than fifteen years.
20. In view of the foregoing, I find that the trial court’s failure to explain to the Appellant the consequences of pleading guilty to the charges that had been read over to him made his plea equivocal. In the premises, the Appellant’s plea cannot be said to have been unequivocal and this amounts to sufficient basis for vitiating his conviction.
21. Having found as I have above, I am satisfied that the appeal is merited and it is hereby allowed. The Appellant’s conviction is consequently quashed and sentence set aside.
Whether to acquit the Appellant or order a retrial
22. The next issue is whether the Court should order a retrial or acquit the Appellant. Courts have given useful guidelines on the factors to consider when deciding on whether or not to order retrial. In Samuel Wahini Ngugi vs. R [2012] eKLR , the Court of Appeal held as follows;
“The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar vs. R (1964) EALR 483, the predecessor to this Court stated as concerns the issue of retrial in criminal cases as follows:
‘….In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person’
23. In Muiruri –vs- Republic (2003), KLR, 552 and Mwangi –vs- Republic (1983) KLR 522 and Fatehali Maji –vs- Republic (1966) EA, 343 the view expressed by the Court of Appeal was that: -
“Although some factors may be considered, such as illegalities or defects in the original trial, the length of time elapsed since the arrest and arraignment of the appellant; whether mistakes leading to the quashing of the conviction were entirely the prosecution’s making or not; whether on a proper consideration of the admissible or potentially admissible evidence a conviction might result from a retrial; at the end of the day, each case must depend on its own particular facts and circumstances and an order for a retrial should only be made where the interests of justice requires it.”
24. In the case of Issa Abdi Mohammed vs. Republic [2006] eKLR , Makhandia J. (as he then was) opined that:
“An order for retrial would have been most appropriate in the circumstances of this case. To do so however, in the circumstances of this case would cause irreparable prejudice to the appellant since the prosecution may have become wiser and would wish to plug the loopholes already alluded to in this judgment. In the result there is only one channel left to this court and that is to allow the appeal, quash the conviction and set aside the sentence. The appellant may be set at liberty forthwith unless otherwise held on a lawful warrant.”
25. I associate with the principles established in the above cited authorities. In my view, the common denominator is that an order for the retrial should only be made where the interests of justice require it and should not be ordered when it is likely to cause an injustice to an accused person.
26. Coming back to the facts of the instant case. I have considered the fact that the offence was allegedly committed against the Complainant who is now 22 years old. I have also considered the sentiments of the Complainant as captured in the Victim Impact Statement Report dated 24 th July, 2023. I also note that she was 19 years at the time of the interview by the probation officer.
27. In the report, she told the Probation officer that she wished that the Appellant is released. She also denied having suffered any physical, psychological, and emotional harm, and she was very defensive of the Appellant. The Probation report states that, during the trial and while the Appellant was out on bond, the Complainant used to spend at the Appellant’s homestead most of the time.
28. I have also considered that the Appellant has been detained for 2 years 8 months since 8 th June, 2023 to date. A good part of this period has gone to his sentence. He was sentenced on 31 st July, 2023, meaning he has served about 2 years and 6 months of his sentence.
29. Having considered all these factors and the unique circumstances of this case, I find that it would not serve the ends of justice to order a retrial in this case. The prospects of a successful de novo hearing are slim because the prosecution is likely to face a real challenge in procuring the Complainant’s cooperation. In the premises, I direct that the Appellant be set at liberty forthwith unless otherwise lawfully held.
30. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Mutua, ODPP
5 | Page
1. The Appellant was charged with the offence of Defilement contrary to section 8 (1) as read with Section 8 (4) of Sexual Offences Act, No. 3 of 2006. The particulars are that, the Appellant, on the diverse dates between December 2020 and November 2021 at Msongeni area, Makindu location in Makindu sub County within Makueni County, intentionally and unlawfully caused his penis to penetrate the vagina of P.K.M a child aged 16 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars are that, the Appellant, on the diverse dates between December 2020 and November 2021 at Msongeni area, Makindu location in Makindu sub County within Makueni County, intentionally and unlawfully touched the vagina of P.K.M a child agaed 16 years with his penis.
3. According to the record, the Accused first pleaded not guilty and the matter proceeded for hearing. At the close of the prosecution’s case, the Court found that the Appellant had a case to answer and he was placed on his defense. He gave sworn evidence in his defense. Thereafter, the record shows that the Appellant told the Court that he wanted to admit to the charges. The court entered a plea of guilty, and convicted him. He was sentenced him 15 years imprisonment.
4. The Appellant was dissatisfied and brought this appeal against both the conviction and the sentence. He listed the following grounds of appeal;
1) That the Appellant pleaded not guilty to the charges.
2) That the trial magistrate grossly erred in law and facts in relying on suspicious and fictitious evidence of PW1 and without noting that PW1 was coerced and subjected to duress thus incriminating the Appellant.
3) That the trial magistrate erred in law and facts in relying on hearsay evidence adduced by prosecution witnesses and failed to note that the charges against the Appellant were born out of malice and ill-will.
4) That the trial magistrate erred in law and facts in convicting on mere allegations and presumptions and holding the testimonies of the prosecution witnesses as truthful and free from doubtful without noting that there was a grudge between the parents of the complainant and the Appellant; in that the parents of the complainant had knowledge that the Appellant was married to their daughter, whom they told the Appellant was over 18 years of age and we agreed in paying dowry in instalments. Appellant’s non-compliance of paying the same due to economic difficulties of life created a grudge where they decided to change and disclose the age of their daughter to be 17 years. The complainant had deceived the Appellant into believing that she was over 18 years of age at the time of the alleged commission of the offence and the Appellant reasonably believed that the Complainant was over 18 years.
5) That the trial magistrate gravely erred in law and facts by failing to note that the case was grounded on extortion by the parents of the victim, thereby prosecution occasioned to a miscarriage of justice.
6) That the learned trial magistrate failed to test the evidence of prosecution witnesses and caution the circumspection thereby convicting on flimsy, inconsistent and evidence that was not water tight enough and lacked probative values to justify a conviction.
7) That the trial court erred in law and fact by not observing that there were no substantive investigations by the I.O thereby basing the conviction on mere allegations and fabrication. In that, have been with the said complainant as his wife with the consent and knowledge of her parents, and we were blessed with a child in the year 2022 who is now more than a year of age. There was no any report from the teacher to prove that she was a student in any particular school. He acted in mala fides while handling the matter.
8) That the trial magistrate erred in law and fact by not finding that the evidence of the complainant as adduced in court and also the long period and also the long period of delay in not reporting the incidence in reasonable times raised sufficient doubt as to occurrence of the incident which renders this as an afterthought and the doubt should have been resolved in Appellant’s favour.
9) That the trial court erred in law and facts by shifting the burden of proof to the Appellant; in that it is trite law that an accused person should only be convicted on the strength of the prosecution evidence and not on the weakness of his defense.
10) That the trial magistrate erred in law and fact as he deliberately overlooked that the witnesses gave false evidence despite the fact that they were under oath to tell the truth and also overlooked the cross-examination of the defense counsel, which was biased and in favor of the prosecution.
11) That the trial magistrate erred in law and facts by failing to find that the prosecution had not proved its case beyond any reasonable doubt as required by law and also failed to scrutinize and evaluate the prosecution evidence thereby arriving at an erroneous decision.
12) That the sentence imposed upon the Appellant was harsh and excessive based on the circumstances and contravened the provisions of Article 47 of the Constitution.
13) The Appellant is very much remorseful before this Honourable Court. He prayed leniency and that may the entire judgment and the sentence imposed be set aside and set him as liberty. In that, he is the sole breadwinner of his family and he was worried about their welfare since they were dependent on him and he was taking care of them. His incarceration is a threat to them.
5. He asked this Court to allow the appeal in its entirety, quash the conviction, set aside the sentence, and set him free.
6. The Appeal was canvassed by way of written submissions. The parties filed their respective submissions, and the same have been considered at length. Essentially, the parties dispute whether the Appellant pleaded guilty to the offence. The Appellant submitted that he did not plead guilty, while the Respondent maintains that he pleaded guilty to the offence.
Issues for Determination
7. Having considered the Grounds of Appeal and the submission of the parties, I find that there are two issues for determination;
a) Whether the Appellant’s plea of guilty was unequivocal.
b) Whether the Sentence imposed was proper.
8. The general rule is that there is, ordinarily, no appeal against conviction resulting from a plea of guilty. In these instances, the law only permits an appeal regarding legality of sentence. However, Courts have created exceptions where a court may interfere with a conviction resulting from a plea of guilty. The Court of Appeal enumerated these exceptions in Alexander Likoye Malika v Republic [2015] KECA764 (KLR) , where the Court held as follows;
May we, by way of commentary only remind that there is ordinarily no appeal against conviction resulting from a plea of guilty – See Section 348 of the Criminal Procedure Code which only permits an appeal regarding legality of sentence. A court may only interfere with a situation where an accused person has pleaded guilty to a charge where the plea is imperfect, ambiguous, or unfinished such that the trial court erred in treating it as a plea of guilty. Another situation is where an accused person pleaded guilty as a result of mistake or misapprehension of the facts. An appellate court may also interfere where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to law. Also where upon admitted facts the appellant could not in law have been convicted of the offence charged.
9. The Appellant submitted that he did not plead guilty and that the trial court was wrong to interpret his plea as such.
10. Section 207 of the Criminal Procedure Code outlines the procedure that is to be followed during plea taking. It provides that:
1. The substance of the charge shall be stated to the accused person by the court and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement.
2. If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the count shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary:
Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded.
11. The manner of recording plea of guilty was dealt with in Ombena vs. Republic [1981] eKLR where the Court of Appeal held that:
“In Adan v Republic [1973] EA 445, the Court of Appeal laid down in the simplest and plainest terms the manner in which pleas of guilty should be recorded and the steps which should be followed. It is appropriate to set out the holding in full —
‘Held:
(i) the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;
(ii) the accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded;
(iii) the prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;
(iv) if the accused does not agree with the facts or raises any question of his guilt his reply must be recorded and change of plea entered;
(v) if there is 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.”
In this case it is not certain that the prosecutor stated the facts, or that the appellants were given an opportunity to dispute or explain the facts or to add any relevant facts. The bald record that the prosecutor said “Facts are as per charge sheets”, and that the charge was read over and explained a second time, is not in our view sufficient to enable us to be satisfied that the pleas were unequivocal. In the Adan case the court said, at p 447:
“The statement of facts serves two purposes: it enables the magistrate to satisfy himself that the plea of guilty was really unequivocal and that the accused has no defence and it gives the magistrate the basic material on which to assess sentence. It not infrequently happens that an accused, after hearing the statement of facts, disputes some particular fact or alleges some additional fact, showing that he did not really understand the position when he pleaded guilty: it is for this reason that it is essential for the statement of facts to precede the conviction.”
We are aware of how busy magistrates and judges are in this part of the world and it may be that the record does not do full justice to the proceedings as they were conducted. However we have to judge by the record as it is. In this case we are not satisfied that the pleas of the appellants can be safely accepted as unequivocal pleas of guilty, or that the convictions can safely be allowed to stand.”
Whether the Appellant’s plea of guilty was unequivocal
12. Before I make a determination on this issue, I shall first set the stage by stating the facts on what transpired at the lower court on the day that the Appellant is alleged to have pleaded guilty. I shall reproduce the record of the Court on 3 rd July, 2023, when the alleged plea of guilty was entered. This is what transpired;
03.07.2023
……………………..
Accused: I wish to admit to the charges I am facing.
Court: Charges read over to the accused in Kiswahili and he replies.
Accused: Ni ukweli.
Court: Plea of guilty is entered.
J.D. KARANI.
SENIOR RESIDENT MAGISTRATE
Prosecutor: I adopt to that evidence by witness in state case.
Accused: Maelezo yote ya case ni ya ukweli.
Court: Convicted on own plea of guilty.
Prosecutor: No representative.
Accused in mitigation: It was bad luck for us to get the child. I am now fully responsible for the child and her mother. I ask court leniency.
Court: Mitigation is considered. Matter referred for social impact report and victim impact report. Mention 24.07.2023. Accused remanded in custody.
J.D. KARANI
SENIOR RESIDENT MAGISTRATE
03.07.2023
13. In determining whether the above plea of guilty was unequivocal, I am guided by several court decisions that have given useful guidance on this issue.
14. In Irungu v Republic (Criminal Appeal E010 of 2024) [2025] eKLR , the Court faulted the trial magistrate for failing to explain to the Accused person the possible consequences of pleading guilty. It observed;
“The only error of omission the learned trial magistrate committed was failing to explain to the appellant the possible consequences of pleading guilty considering that he was unrepresented. Given that the offence facing him was one that was likely to attract a custodial sentence, the learned trial magistrate ought to have taken extra caution to ensure that the appellant not only understood the charges facing him but was also aware of the consequences of pleading guilty to the charge. If after such an explanation which should be captured on record the appellant maintained his plea of guilty, then his plea would no doubt be unequivocal.
In view of the foregoing, I find that the trial court’s failure to explain to the accused the consequences of pleading guilty to the charges that had been read over to him made his plea equivocal and this amounts to sufficient basis for vitiating his conviction .”
15. Similarly, the Court in Abdallah Mohammed vs. Republic [2018] eKLR observed as follows;
“In a case where an accused person who is undefended pleads guilty to a charge, the court has a duty to ensure that the plea is unequivocal . As pointed out, the Appellant had no legal representation and the trial court ought to have taken steps to ensure that the Appellant understood every element of the charge and the facts read out to him. He also ought to have been warned, and that warning captured on record, that the offence he was about to plead to carried a prison sentence of not less than fifteen years.
……From the record, it is apparent that the Appellant was just but a lad aged 21 years and the trial court ought to have gone the extra mile to ensure he understood the consequences of entering a plea of guilty.”
16. Lastly, the Court in Simon Gitau Kinene v Republic [2016] eKLR held this view that extra caution needs to be taken in the case of undefended defendants who plead guilty. The Court held;
“19. Finally, courts have always held that extra caution needs to be taken in the case of undefended defendants who plead guilty. I have previously held that where an Accused Person is unrepresented, the duty of the Court to ensure the plea of guilty is unequivocal is heightened. In Paulo Malimi Mbusi v R Kiambu Crim. App. No. 8 of 2016 (unreported) this is what I said and I find it relevant here:
In those cases [where there is an unrepresented Accused charged with a serious offence], care should always be taken to see that the Accused understands the elements of the offence..….To put it plainly, then, one may add that where an unrepresented Accused Person pleads guilty to a serious charge which is likely to attract custodial sentence, the obligation of the court to ensure that the Accused Person understands the consequences of such a plea is heightened. Here, the Court took no extra effort to ensure this. In these circumstances, given the seriousness of the charge the Court was about to convict and sentence the Accused Person for, it behooved the Court to warn the Accused Person of the consequences of a guilty plea.”
17. All the above authorities underscore the principle that the trial court is required to explain to unrepresented accused persons the consequences of entering a plea of guilty, and particularly where the charge attracts a custodial sentence.
18. In the present case, the Appellant was charged under Section 8 (1) as read together with Section 8 (4), which attracts a mandatory minimum sentence of not less than fifteen years. In addition, the Appellant was unrepresented at the lower court. Thus, based on the above stated authorities, the duty of the trial court to explain to accused persons the consequences of entering a plea of guilty was applicable in this case.
19. From the record, and the extract reproduced above, it is clear that the court did not take extra effort to ensure that the Appellant knew the consequence of entering a plea of guilty. The trial magistrate ought to have been warned, and that warning captured on record, that the offence the Appellant was about to plead to carried a prison sentence of not less than fifteen years.
20. In view of the foregoing, I find that the trial court’s failure to explain to the Appellant the consequences of pleading guilty to the charges that had been read over to him made his plea equivocal. In the premises, the Appellant’s plea cannot be said to have been unequivocal and this amounts to sufficient basis for vitiating his conviction.
21. Having found as I have above, I am satisfied that the appeal is merited and it is hereby allowed. The Appellant’s conviction is consequently quashed and sentence set aside.
Whether to acquit the Appellant or order a retrial
22. The next issue is whether the Court should order a retrial or acquit the Appellant. Courts have given useful guidelines on the factors to consider when deciding on whether or not to order retrial. In Samuel Wahini Ngugi vs. R [2012] eKLR , the Court of Appeal held as follows;
“The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar vs. R (1964) EALR 483, the predecessor to this Court stated as concerns the issue of retrial in criminal cases as follows:
‘….In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person’
23. In Muiruri –vs- Republic (2003), KLR, 552 and Mwangi –vs- Republic (1983) KLR 522 and Fatehali Maji –vs- Republic (1966) EA, 343 the view expressed by the Court of Appeal was that: -
“Although some factors may be considered, such as illegalities or defects in the original trial, the length of time elapsed since the arrest and arraignment of the appellant; whether mistakes leading to the quashing of the conviction were entirely the prosecution’s making or not; whether on a proper consideration of the admissible or potentially admissible evidence a conviction might result from a retrial; at the end of the day, each case must depend on its own particular facts and circumstances and an order for a retrial should only be made where the interests of justice requires it.”
24. In the case of Issa Abdi Mohammed vs. Republic [2006] eKLR , Makhandia J. (as he then was) opined that:
“An order for retrial would have been most appropriate in the circumstances of this case. To do so however, in the circumstances of this case would cause irreparable prejudice to the appellant since the prosecution may have become wiser and would wish to plug the loopholes already alluded to in this judgment. In the result there is only one channel left to this court and that is to allow the appeal, quash the conviction and set aside the sentence. The appellant may be set at liberty forthwith unless otherwise held on a lawful warrant.”
25. I associate with the principles established in the above cited authorities. In my view, the common denominator is that an order for the retrial should only be made where the interests of justice require it and should not be ordered when it is likely to cause an injustice to an accused person.
26. Coming back to the facts of the instant case. I have considered the fact that the offence was allegedly committed against the Complainant who is now 22 years old. I have also considered the sentiments of the Complainant as captured in the Victim Impact Statement Report dated 24 th July, 2023. I also note that she was 19 years at the time of the interview by the probation officer.
27. In the report, she told the Probation officer that she wished that the Appellant is released. She also denied having suffered any physical, psychological, and emotional harm, and she was very defensive of the Appellant. The Probation report states that, during the trial and while the Appellant was out on bond, the Complainant used to spend at the Appellant’s homestead most of the time.
28. I have also considered that the Appellant has been detained for 2 years 8 months since 8 th June, 2023 to date. A good part of this period has gone to his sentence. He was sentenced on 31 st July, 2023, meaning he has served about 2 years and 6 months of his sentence.
29. Having considered all these factors and the unique circumstances of this case, I find that it would not serve the ends of justice to order a retrial in this case. The prospects of a successful de novo hearing are slim because the prosecution is likely to face a real challenge in procuring the Complainant’s cooperation. In the premises, I direct that the Appellant be set at liberty forthwith unless otherwise lawfully held.
30. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Mutua, ODPP
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