INTRODUCTION
1. The appellant in this case was arrested on 18 th August 2023 and charged on the 12 th September 2023 before the Children Court Milimani.
2. The appellant pleaded guilty to the charges of Trafficking in Person Contrary to Section 4(2) of the Counter Trafficking Act No. 8 of 2010 and Child stealing contrary to Section 174(1) (b) of the Penal Code.
3. The appellant having pleaded guilty to the charges was convicted and sentenced to serve a prison term of 30 years and 7 years respectively.
4. The appellant dissatisfied with the sentence imposed on her appealed to this court on the following grounds;-
i. THAT, the trial Hon Magistrate erred in matters of law and fact by failing to appreciate that she did not waste courts time and resources by pleading guilty.
ii. THAT, the trial Hon Magistrate erred in matters of law and fact by meting a harsh and excessive sentence considering that I did not go through trial process.
iii. THAT, the trial Hon Magistrate erred in matters of law and fact by entering unequivocal plea without considering other factors.
iv. THAT, the trial Hon Magistrate erred in matters of law and fact by delivering an ambiguous judgment.
5. The appellant urged this court that based on the four grounds set out above this court should be pleased to quash the conviction, set aside the judgment and set her at liberty.
ISSUES FOR DETERMINATION
6. The issues that arise in this appeal are basically three;-
a). whether the plea of guilty entered was unequivocal
b). whether the sentences handed down to the appellant were legal and excessive
c). whether the court should consider acquitting the appellant or ordering a retrial
APPELLANT’S SUBMISSIONS
7. The Appellant in this appeal came out as challenging both the plea-taking process and the severity of the sentence.
8. The Appellant submitted that the learned trial magistrate erred in law and fact by failing to appreciate that the Appellant pleaded guilty at the earliest opportunity and thereby saved the court’s time and resources.
9. It was further submitted that the sentence imposed was harsh and excessive, particularly considering that the matter did not proceed to a full trial.
10. The Appellant additionally contended that the plea entered was not unequivocal and that the judgment delivered was ambiguous.
11. The Appellant further submitted that this being a first appeal, the duty of the appellate court is to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusion. Reliance was placed on Njoroge Republic [1989] KLR 313 where the Court of Appeal held that:
“On first appeal from conviction by a magistrate the appellant is entitled to have the appellate court's own consideration and views on the evidence as a whole and its own decisions thereon.”
12. The appellant further submitted that since the matter did not proceed to hearing owing to the plea of guilty, the primary issue for determination is whether the plea was unequivocal and whether the sentence imposed was excessive.
13. On the issue of whether the plea was unequivocal, the Appellant relied on the principles set out in Adan v. Republic [1973] E.A 445 where the Court of Appeal laid down the procedure to be followed in recording pleas of guilty. The Appellant reiterates the requirements in the recording of a plea of guilty, namely that;-
i) the charge and all essential ingredients of the offence must be explained to the accused in a language understood by the accused;
ii) the accused’s own words must be recorded;
iii) the prosecution must state the facts;
iv) the accused must be accorded an opportunity to dispute or explain those facts; and if no dispute arises, conviction and sentencing should follow after recording the accused’s response.
14. The Appellant submitted that the plea was taken on 12th September 2023 in the presence of the Honorable Principal Magistrate, State Counsel, the Appellant and the Court Assistant.
15. However, the Appellant contends that although the record indicated that there was an advocate representing her, she was in fact unrepresented throughout the proceedings and conducted her own defence.
16. The Appellant argued that the principles set out in Adan v. Republic [1973] E.A 445 were not complied with, thereby occasioning prejudice.
17. The Appellant referred to the proceedings at page 1 lines 6–8 where the court recorded that “the substance of the charge(s) and every element thereof has been stated by the court to the accused person/subject in a language that she understands.”
18. He went on to submit that despite that record, the charge and its essential ingredients were not adequately explained to the Appellant.
19. The Appellant contended that the court failed to explain the elements of the offences one by one in a manner that would have enabled her to make an informed decision on whether to plead guilty.
20. The Appellant further relied on Ombena v Republic [1981] ekLr and Elijah Njihia Wakianda 2016 eKLR in support of the argument that she did not receive a fair hearing and that had she properly understood the charges, she would most likely have entered a different plea.
21. She further posited that the plea-taking process was not understandable to her, especially considering that she was unrepresented.
22. Further reliance was placed on Simon Gitau Kinene vs Republic [2016 ] eKLR where Prof. Ngugi J. (as he then was) emphasized the heightened duty of courts when dealing with unrepresented accused persons pleading guilty to serious offences.
23. The Appellant particularly relied on the court’s observations in Paulo Malimi Mbusi vs Republic Kiambu Crim.App.No.8 of 2016 (unreported), where it was held that courts must exercise extra caution to ensure that unrepresented accused persons understand the elements of the offence and the consequences of pleading guilty, especially where the offences attract custodial sentences. The Appellant submits that the trial court failed to take any additional steps to ensure that she appreciated the seriousness of the charges and the consequences of her plea.
24. The appellant further submitted that the learned trial magistrate failed to caution her on the seriousness of the offences and the severe punishments attached thereto. According to the Appellant, had such caution been given, she would have reconsidered her plea.
25. The Appellant also contended that the prosecution did not adequately state the facts forming the basis of the charges and that the court record does not demonstrate that sufficient time was taken to outline those facts before confirmation by the Appellant.
26. The Appellant further asserted that she was never supplied with witness statements, contrary to the constitutional guarantees under Article 50(2)(j) and Article 50(2)(c) of the Constitution of Kenya, 2010, which guarantee an accused person the right to be informed in advance of the evidence the prosecution intends to rely on and to have adequate time and facilities to prepare a defence.
27. The Appellant relied on Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR where the Court of Appeal stated:
“We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under....... our Constitution, the prosecution is now under a duty to provide an accused person with, and to do so in advance of the trial; all the relevant material such as copies of statements of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items.”
28. The Appellant submitted that the failure to furnish witness statements denied her the opportunity to make an informed decision on whether to plead guilty or contest the charges. The appellant further argued that the right to access evidence prior to trial is fundamental to the right to a fair hearing and that the Appellant was denied sufficient time and facilities to prepare her defence.
29. On sentence, the Appellant submitted that the trial court imposed a harsh and manifestly excessive sentence by sentencing her to the maximum terms for both offences without considering the mitigating factors and the benefits ordinarily attendant to a plea of guilty.
30. According to the appellant had the court properly cautioned the Appellant on the severity of the sentence, she would have reconsidered her plea.
31. The Appellant relied on Mwaniki v. Republic (2019 eKLR , where the appellate court set aside a sentence on the basis that it was manifestly excessive and failed to consider the personal circumstances of the appellant. Further reliance was placed on Pius Mwenda v. Republic (2013), where the Court of Appeal reduced a sentence found to be excessively harsh.
32. The appellant pleaded with the court to allow the appeal and find the sentence to be harsh and reduce the same.
RESPONDENT’S SUBMISSION
33. The Respondent submitted that the Appellant was charged before the trial court with the offences of Trafficking in Persons contrary to Section 4(1) of the Counter Trafficking Act No. 8 of 2010 and Child Stealing contrary to Section 174(1)(b) of the Penal Code. Upon arraignment before the trial court, the Appellant pleaded guilty to both counts and was consequently sentenced to thirty (30) years imprisonment on the first count and seven (7) years imprisonment on the second count. Being dissatisfied with both conviction and sentence, the Appellant lodged the present appeal, which the Respondent opposes in its entirety on the basis that the appeal lacks merit.
34. On the issue of whether the plea of guilty was unequivocal, the Respondent submits that the plea was properly taken in accordance with Section 207 of the Criminal Procedure Code.
35. The Respondent notes that the Appellant’s contention is that she was not represented by counsel during plea taking and was not supplied with witness statements prior to plea, thereby allegedly rendering the plea equivocal. However, the Respondent argues that the law only requires that the substance of the charge and all essential ingredients thereof be explained to the accused person in a language understood by the accused, after which the accused’s own words admitting the charge are recorded.
36. According to the respondent that was done. The respondent relied on Adan-vs-Republic [1973] EA 445 where the court set out the requirements of an unequivocal plea of guilty, namely that the charge and all essential ingredients of the offence must be explained in a language understood by the accused; the accused’s own words admitting the charge must be recorded; the prosecution must state the facts; the accused must be accorded an opportunity to dispute or explain the facts; and where there is no dispute, a conviction and sentence may properly follow.
37. The Respondent further relied on Obed Kilonzo Kevevo -Vs- Republic (2015) eKLR where the Court of Appeal emphasized the importance of the statement of facts in enabling the trial court to satisfy itself that the plea is unequivocal and that the accused understood the facts and had no defence thereto. Further reliance was placed on Alexander Lukoye Malika vs. Republic [2015] eKLR where the Court of Appeal held that interference with a conviction based on a plea of guilty can only arise where the plea is imperfect, ambiguous, entered through mistake or misapprehension of facts, or where the charge discloses no offence known to law.
38. The Respondent submitted that in the present matter, the record clearly demonstrates that the charges and every essential ingredient thereof were read and explained to the Appellant in a language she understood, and that the Appellant responded in verbatim, “it is true.” Thereafter, the prosecution outlined the facts of the case and the Appellant confirmed that the facts were correct. The Respondent therefore contends that the procedure under Section 207 of the Criminal Procedure Code was fully complied with and that the plea entered was unequivocal.
39. The Respondent further submits that representation by counsel and prior supply of witness statements are not mandatory preconditions for plea taking. According to the Respondent, the critical consideration is whether the accused person understood the charge and voluntarily admitted the same.
40. The Respondent also invoked Section 348 of the Criminal Procedure Code which bars appeals against conviction arising from an unequivocal plea of guilty except as to the extent and legality of sentence.
41. In support of this position, reliance was placed on Olel v Republic [1989] KLR 444 where the court held that where a plea is unequivocal, an appeal against conviction does not lie and that Section 348 completely bars such appeals. The Respondent consequently urges the court to dismiss the appeal against conviction for failing to meet the threshold warranting interference with a plea of guilty.
42. On the issue of sentence, the Respondent submitted that the sentences imposed by the trial court were lawful, proper, and neither harsh nor excessive. With respect to the first count of trafficking in persons, the Respondent cited Section 4 of the Counter Trafficking Act No. 8 of 2010 which criminalizes adoption, fostering, or guardianship undertaken for purposes of trafficking and prescribes a sentence of imprisonment for a term of not less than thirty years, a fine of not less than twenty million shillings, or both. The Respondent submitted that the sentence of thirty years imprisonment imposed by the trial court was in fact the statutory minimum sentence provided under the law in respect of Count I.
43. In regard to the second count of child stealing contrary to Section 174 of the Penal Code, the Respondent submits that the offence attracts a sentence of seven years imprisonment.
44. It was submitted that in imposing the sentence, the learned trial magistrate considered all relevant factors including the presentence report, the circumstances of the offence, the fact that the child, who was only two months old, had not been found, the impact on the victim, and the Appellant’s mitigation. The Respondent notes that in mitigation the Appellant stated that she had raised the minor as her own child and sought forgiveness.
45. The Respondent therefore maintained that the trial court acted within the law and exercised its discretion properly in sentencing the Appellant. It was submitted that the Appellant had failed to demonstrate that the trial magistrate acted on wrong principles, overlooked material factors, or imposed an unlawful sentence. Consequently, the Respondent urged that the appeal be dismissed in its entirety.
ANALYSIS AND DETERMINATION
46. The appellant in this appeal basically seeks to have this court quash a plea of guilty conviction on the basis that the same was not properly taken and that she did not receive a fair trial leading to her conviction.
47. The appellant complained that the trial court erred in indicating that she was represented at the trial yet she had no advocate on record, this court has independently examined the record of the lower court reads;-
“The substance of the charges(s) and every element thereof has been stated by the court to the accused person/subject ( in the presence of an advocate) in a language that he or she understands who being asked whether he or she admits or denies the truth of the charges replies;
Count I- it is true
Count II- it is true”. (emphasis added)
48. This court has noted that there was no indication in the coram who the advocate acting for the accused was and throughout the proceedings there appears not to have been any counsel on record.
49. The complaint is serious because it does appear to this court that what the court adopted at that stage of plea recording was a template which is to say the least was dangerous for it misrepresents a very crucial element of fairness of the hearing.
50. The question of representation under Article 50 of the Constitution is critical and directly impacts on the fair trial right of the accused. The respondents did not in their submissions appear to appreciate that a representation by a court that is not factually correct in the record of a plea of guilt is such a fundamental error that would render the entire proceedings a nullity.
51. The appellant took up the point just to demonstrate that the process was not fair and indeed considering that the coram does not indicate the presence of counsel, the court cannot ignore the appellants complaint. This is critical considering that under Article 50 (2) (h) the accused has a right to be assigned counsel at state expense if substantial injustice would result and to be informed of that right.
52. The offense in count I attracts a minimum of 30 years imprisonment. The sentence if improperly imposed would result in substantial injustice thus underscoring the seriousness of the complaint by the appellant which this court has emphasized is of monumental effect. The respondent has urged the court to find that the issue of counsel and supply of witness statements is not a precondition to the entry of a guilty plea. The court with tremendous respect to counsel for the respondent disagrees more so where the record does not show that the appellant was warned of the likely consequences of a plea of guilty in the matter.
53. At least a warning on the possible sentence in count I would have been necessary for the appellant to exercise her mind on the nature of plea to enter fully aware of the likely consequence. The omission to do so by the trial court cannot escape the sanction of this court.
54. Further, the record of the lower court indicates that the language used during the trial as English/Kiswahili, so one cannot tell whether the proceedings were conducted in English and translated into Kiswahili or Kiswahili translated into English or what was the exact language that the appellant elected to use.
55. The accused “own words” in answer to the charge would require to be recorded in the language used by the accused and translated into English. In the instant case, if the answer as indicated was “it is true” the assumption would be that the appellant knew and used English. The question that would arise then is why the court had to indicate English /Kiswahili.
56. The gap in language is key because the court ought to have been clear as to the language used during the proceedings. The issue of language becomes even more critical when one looks at the allegation by the appellant that she did not understand the implications or the consequences of the plea she was entering into.
57. The duty of the court in recording a guilty plea is well articulated in the case of ADAN –VS- REPUBLIC [1973] EA 445, as follows;
“(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 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 raise 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.”
58. The record of the trial court must speak for itself in respect of the matters set out in the authority above. As stated earlier on, it is not clear from the court record the exact language that the court used. The record therefore falls short of the expectation of the law since it could as well be that the accused never understood the proceedings.
59. It is important to emphasize that a trial court accepting a plea of guilty from an accused person who has been in a pre -trial detention should be very cautious since such a person appears before that court from a position of disadvantage having been held in custody which exerts pressure on an individual.
60. The appellant having been arrested on the 18 th August 2026 and held in pretrial detention until the 12 th September 2023 when she took plea, the court was under duty to make inquiries from her about her state even though she was held under the orders of court. See Odhiambo Olel vs Republic {1993} eKLr where the court emphasized on the court’s duty in assessing the voluntariness of a guilty plea. Although one may argue that the appellant in the Odhiambo Case had been illegally detained, detention is detention and there is need for caution in accepting guilty pleas from individuals who have had to undergo a pre-charge detention whether or not the pre-charge detention was court sanctioned. See also Ndede vs Rep {1989} eKLr.
61. The appellant has also contended that the elements of the offence were also not explained to her. The record reflects that the elements were stated to the accused but again though the court states “in a language that he or she understands” the language is not expressly stated.
62. In Juma Mwalenga Vs Rep {2018} KEHC 5837 (KLR) Mr. Justice P.J.O Otieno decried the use of plea templates by the trial courts and stated that due to the voluminous nature of work in those courts, although the courts may use templates, the same should be adopted with utmost alacrity and circumspection so that all critical details are not left out or ignored.
63. To the holding by my brother judge, this court adds that where such templates are used the court must be careful not to retain parts of the template that do not present the correct state of facts such as the fact of one being indicated as having been represented yet they were not.
64. The effect of the identified error on language and the indication that the appellant was represented yet she had no counsel render the plea of guilty equivocal.
65. This court cannot with certainty say that the appellant received a fair trial and that the plea was voluntary.
66. The serious of the charges and the severity of sentence imposed called for a heighted degree of vigilance in recording the guilty plea and a great degree of caution.
67. The court also notes that there was no conviction entered upon the admission of facts. The decision in ADAN –VS- REPUBLIC [1973] EA 445 makes it clear that a conviction must be recorded if the court is satisfied that the plea is unequivocal. The court having failed to enter a conviction left the matter at the entry of a guilty plea yet the law requires that if a conviction is reached the same should be stated with clarity complete with the offence and section of the law relating to the offence. The errors are grave and they go to the root of a fair trial. The irregularities lead to the courts finding that the plea was equivocal and the sentences cannot stand.
68. The court therefore finds that this appeal has merit and the same is hereby allowed.
69. Having reached that finding, this court must now consider whether an order for a retrial is merited in the circumstances.
70. The answer to that question is an emphatic yes. The errors identified in the record of the lower court simply lead to the conclusion that there was a mistrial in that in court. The offences are serious and they involve an innocent minor victim. The lapse of barely two years and a few months since the arrest of the appellant cannot be said to be an inordinate period that may render a retrial impossible. Further, since there was no taking of evidence in the earlier proceedings there cannot be case of the prosecution being given an opportunity to fill any gaps in the case.
71. The victim being a child this court takes into account the best interests of the Child under Section 8 of the Children Act and balancing the fair trial rights of the accused finds that it is indeed in the best interests of the child victim and that it is in the public interest and interests of the administration of justice that this matter be remanded to the trial court for rehearing.
72. An order for a retrial is hereby granted and the accused shall be arraigned before the Children Court Milimani on 22 nd June 2026 for the taking of a fresh plea and the matter be immediately set down for hearing before a magistrate of competent jurisdiction other than the one who convicted the appellant (Hon. A. G. MUNENE PM). The hearing to be on a priority basis considering the period the appellant has spent in custody.
73. It is so ordered.
1. The appellant in this case was arrested on 18 th August 2023 and charged on the 12 th September 2023 before the Children Court Milimani.
2. The appellant pleaded guilty to the charges of Trafficking in Person Contrary to Section 4(2) of the Counter Trafficking Act No. 8 of 2010 and Child stealing contrary to Section 174(1) (b) of the Penal Code.
3. The appellant having pleaded guilty to the charges was convicted and sentenced to serve a prison term of 30 years and 7 years respectively.
4. The appellant dissatisfied with the sentence imposed on her appealed to this court on the following grounds;-
i. THAT, the trial Hon Magistrate erred in matters of law and fact by failing to appreciate that she did not waste courts time and resources by pleading guilty.
ii. THAT, the trial Hon Magistrate erred in matters of law and fact by meting a harsh and excessive sentence considering that I did not go through trial process.
iii. THAT, the trial Hon Magistrate erred in matters of law and fact by entering unequivocal plea without considering other factors.
iv. THAT, the trial Hon Magistrate erred in matters of law and fact by delivering an ambiguous judgment.
5. The appellant urged this court that based on the four grounds set out above this court should be pleased to quash the conviction, set aside the judgment and set her at liberty.
ISSUES FOR DETERMINATION
6. The issues that arise in this appeal are basically three;-
a). whether the plea of guilty entered was unequivocal
b). whether the sentences handed down to the appellant were legal and excessive
c). whether the court should consider acquitting the appellant or ordering a retrial
APPELLANT’S SUBMISSIONS
7. The Appellant in this appeal came out as challenging both the plea-taking process and the severity of the sentence.
8. The Appellant submitted that the learned trial magistrate erred in law and fact by failing to appreciate that the Appellant pleaded guilty at the earliest opportunity and thereby saved the court’s time and resources.
9. It was further submitted that the sentence imposed was harsh and excessive, particularly considering that the matter did not proceed to a full trial.
10. The Appellant additionally contended that the plea entered was not unequivocal and that the judgment delivered was ambiguous.
11. The Appellant further submitted that this being a first appeal, the duty of the appellate court is to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusion. Reliance was placed on Njoroge Republic [1989] KLR 313 where the Court of Appeal held that:
“On first appeal from conviction by a magistrate the appellant is entitled to have the appellate court's own consideration and views on the evidence as a whole and its own decisions thereon.”
12. The appellant further submitted that since the matter did not proceed to hearing owing to the plea of guilty, the primary issue for determination is whether the plea was unequivocal and whether the sentence imposed was excessive.
13. On the issue of whether the plea was unequivocal, the Appellant relied on the principles set out in Adan v. Republic [1973] E.A 445 where the Court of Appeal laid down the procedure to be followed in recording pleas of guilty. The Appellant reiterates the requirements in the recording of a plea of guilty, namely that;-
i) the charge and all essential ingredients of the offence must be explained to the accused in a language understood by the accused;
ii) the accused’s own words must be recorded;
iii) the prosecution must state the facts;
iv) the accused must be accorded an opportunity to dispute or explain those facts; and if no dispute arises, conviction and sentencing should follow after recording the accused’s response.
14. The Appellant submitted that the plea was taken on 12th September 2023 in the presence of the Honorable Principal Magistrate, State Counsel, the Appellant and the Court Assistant.
15. However, the Appellant contends that although the record indicated that there was an advocate representing her, she was in fact unrepresented throughout the proceedings and conducted her own defence.
16. The Appellant argued that the principles set out in Adan v. Republic [1973] E.A 445 were not complied with, thereby occasioning prejudice.
17. The Appellant referred to the proceedings at page 1 lines 6–8 where the court recorded that “the substance of the charge(s) and every element thereof has been stated by the court to the accused person/subject in a language that she understands.”
18. He went on to submit that despite that record, the charge and its essential ingredients were not adequately explained to the Appellant.
19. The Appellant contended that the court failed to explain the elements of the offences one by one in a manner that would have enabled her to make an informed decision on whether to plead guilty.
20. The Appellant further relied on Ombena v Republic [1981] ekLr and Elijah Njihia Wakianda 2016 eKLR in support of the argument that she did not receive a fair hearing and that had she properly understood the charges, she would most likely have entered a different plea.
21. She further posited that the plea-taking process was not understandable to her, especially considering that she was unrepresented.
22. Further reliance was placed on Simon Gitau Kinene vs Republic [2016 ] eKLR where Prof. Ngugi J. (as he then was) emphasized the heightened duty of courts when dealing with unrepresented accused persons pleading guilty to serious offences.
23. The Appellant particularly relied on the court’s observations in Paulo Malimi Mbusi vs Republic Kiambu Crim.App.No.8 of 2016 (unreported), where it was held that courts must exercise extra caution to ensure that unrepresented accused persons understand the elements of the offence and the consequences of pleading guilty, especially where the offences attract custodial sentences. The Appellant submits that the trial court failed to take any additional steps to ensure that she appreciated the seriousness of the charges and the consequences of her plea.
24. The appellant further submitted that the learned trial magistrate failed to caution her on the seriousness of the offences and the severe punishments attached thereto. According to the Appellant, had such caution been given, she would have reconsidered her plea.
25. The Appellant also contended that the prosecution did not adequately state the facts forming the basis of the charges and that the court record does not demonstrate that sufficient time was taken to outline those facts before confirmation by the Appellant.
26. The Appellant further asserted that she was never supplied with witness statements, contrary to the constitutional guarantees under Article 50(2)(j) and Article 50(2)(c) of the Constitution of Kenya, 2010, which guarantee an accused person the right to be informed in advance of the evidence the prosecution intends to rely on and to have adequate time and facilities to prepare a defence.
27. The Appellant relied on Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR where the Court of Appeal stated:
“We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under....... our Constitution, the prosecution is now under a duty to provide an accused person with, and to do so in advance of the trial; all the relevant material such as copies of statements of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items.”
28. The Appellant submitted that the failure to furnish witness statements denied her the opportunity to make an informed decision on whether to plead guilty or contest the charges. The appellant further argued that the right to access evidence prior to trial is fundamental to the right to a fair hearing and that the Appellant was denied sufficient time and facilities to prepare her defence.
29. On sentence, the Appellant submitted that the trial court imposed a harsh and manifestly excessive sentence by sentencing her to the maximum terms for both offences without considering the mitigating factors and the benefits ordinarily attendant to a plea of guilty.
30. According to the appellant had the court properly cautioned the Appellant on the severity of the sentence, she would have reconsidered her plea.
31. The Appellant relied on Mwaniki v. Republic (2019 eKLR , where the appellate court set aside a sentence on the basis that it was manifestly excessive and failed to consider the personal circumstances of the appellant. Further reliance was placed on Pius Mwenda v. Republic (2013), where the Court of Appeal reduced a sentence found to be excessively harsh.
32. The appellant pleaded with the court to allow the appeal and find the sentence to be harsh and reduce the same.
RESPONDENT’S SUBMISSION
33. The Respondent submitted that the Appellant was charged before the trial court with the offences of Trafficking in Persons contrary to Section 4(1) of the Counter Trafficking Act No. 8 of 2010 and Child Stealing contrary to Section 174(1)(b) of the Penal Code. Upon arraignment before the trial court, the Appellant pleaded guilty to both counts and was consequently sentenced to thirty (30) years imprisonment on the first count and seven (7) years imprisonment on the second count. Being dissatisfied with both conviction and sentence, the Appellant lodged the present appeal, which the Respondent opposes in its entirety on the basis that the appeal lacks merit.
34. On the issue of whether the plea of guilty was unequivocal, the Respondent submits that the plea was properly taken in accordance with Section 207 of the Criminal Procedure Code.
35. The Respondent notes that the Appellant’s contention is that she was not represented by counsel during plea taking and was not supplied with witness statements prior to plea, thereby allegedly rendering the plea equivocal. However, the Respondent argues that the law only requires that the substance of the charge and all essential ingredients thereof be explained to the accused person in a language understood by the accused, after which the accused’s own words admitting the charge are recorded.
36. According to the respondent that was done. The respondent relied on Adan-vs-Republic [1973] EA 445 where the court set out the requirements of an unequivocal plea of guilty, namely that the charge and all essential ingredients of the offence must be explained in a language understood by the accused; the accused’s own words admitting the charge must be recorded; the prosecution must state the facts; the accused must be accorded an opportunity to dispute or explain the facts; and where there is no dispute, a conviction and sentence may properly follow.
37. The Respondent further relied on Obed Kilonzo Kevevo -Vs- Republic (2015) eKLR where the Court of Appeal emphasized the importance of the statement of facts in enabling the trial court to satisfy itself that the plea is unequivocal and that the accused understood the facts and had no defence thereto. Further reliance was placed on Alexander Lukoye Malika vs. Republic [2015] eKLR where the Court of Appeal held that interference with a conviction based on a plea of guilty can only arise where the plea is imperfect, ambiguous, entered through mistake or misapprehension of facts, or where the charge discloses no offence known to law.
38. The Respondent submitted that in the present matter, the record clearly demonstrates that the charges and every essential ingredient thereof were read and explained to the Appellant in a language she understood, and that the Appellant responded in verbatim, “it is true.” Thereafter, the prosecution outlined the facts of the case and the Appellant confirmed that the facts were correct. The Respondent therefore contends that the procedure under Section 207 of the Criminal Procedure Code was fully complied with and that the plea entered was unequivocal.
39. The Respondent further submits that representation by counsel and prior supply of witness statements are not mandatory preconditions for plea taking. According to the Respondent, the critical consideration is whether the accused person understood the charge and voluntarily admitted the same.
40. The Respondent also invoked Section 348 of the Criminal Procedure Code which bars appeals against conviction arising from an unequivocal plea of guilty except as to the extent and legality of sentence.
41. In support of this position, reliance was placed on Olel v Republic [1989] KLR 444 where the court held that where a plea is unequivocal, an appeal against conviction does not lie and that Section 348 completely bars such appeals. The Respondent consequently urges the court to dismiss the appeal against conviction for failing to meet the threshold warranting interference with a plea of guilty.
42. On the issue of sentence, the Respondent submitted that the sentences imposed by the trial court were lawful, proper, and neither harsh nor excessive. With respect to the first count of trafficking in persons, the Respondent cited Section 4 of the Counter Trafficking Act No. 8 of 2010 which criminalizes adoption, fostering, or guardianship undertaken for purposes of trafficking and prescribes a sentence of imprisonment for a term of not less than thirty years, a fine of not less than twenty million shillings, or both. The Respondent submitted that the sentence of thirty years imprisonment imposed by the trial court was in fact the statutory minimum sentence provided under the law in respect of Count I.
43. In regard to the second count of child stealing contrary to Section 174 of the Penal Code, the Respondent submits that the offence attracts a sentence of seven years imprisonment.
44. It was submitted that in imposing the sentence, the learned trial magistrate considered all relevant factors including the presentence report, the circumstances of the offence, the fact that the child, who was only two months old, had not been found, the impact on the victim, and the Appellant’s mitigation. The Respondent notes that in mitigation the Appellant stated that she had raised the minor as her own child and sought forgiveness.
45. The Respondent therefore maintained that the trial court acted within the law and exercised its discretion properly in sentencing the Appellant. It was submitted that the Appellant had failed to demonstrate that the trial magistrate acted on wrong principles, overlooked material factors, or imposed an unlawful sentence. Consequently, the Respondent urged that the appeal be dismissed in its entirety.
ANALYSIS AND DETERMINATION
46. The appellant in this appeal basically seeks to have this court quash a plea of guilty conviction on the basis that the same was not properly taken and that she did not receive a fair trial leading to her conviction.
47. The appellant complained that the trial court erred in indicating that she was represented at the trial yet she had no advocate on record, this court has independently examined the record of the lower court reads;-
“The substance of the charges(s) and every element thereof has been stated by the court to the accused person/subject ( in the presence of an advocate) in a language that he or she understands who being asked whether he or she admits or denies the truth of the charges replies;
Count I- it is true
Count II- it is true”. (emphasis added)
48. This court has noted that there was no indication in the coram who the advocate acting for the accused was and throughout the proceedings there appears not to have been any counsel on record.
49. The complaint is serious because it does appear to this court that what the court adopted at that stage of plea recording was a template which is to say the least was dangerous for it misrepresents a very crucial element of fairness of the hearing.
50. The question of representation under Article 50 of the Constitution is critical and directly impacts on the fair trial right of the accused. The respondents did not in their submissions appear to appreciate that a representation by a court that is not factually correct in the record of a plea of guilt is such a fundamental error that would render the entire proceedings a nullity.
51. The appellant took up the point just to demonstrate that the process was not fair and indeed considering that the coram does not indicate the presence of counsel, the court cannot ignore the appellants complaint. This is critical considering that under Article 50 (2) (h) the accused has a right to be assigned counsel at state expense if substantial injustice would result and to be informed of that right.
52. The offense in count I attracts a minimum of 30 years imprisonment. The sentence if improperly imposed would result in substantial injustice thus underscoring the seriousness of the complaint by the appellant which this court has emphasized is of monumental effect. The respondent has urged the court to find that the issue of counsel and supply of witness statements is not a precondition to the entry of a guilty plea. The court with tremendous respect to counsel for the respondent disagrees more so where the record does not show that the appellant was warned of the likely consequences of a plea of guilty in the matter.
53. At least a warning on the possible sentence in count I would have been necessary for the appellant to exercise her mind on the nature of plea to enter fully aware of the likely consequence. The omission to do so by the trial court cannot escape the sanction of this court.
54. Further, the record of the lower court indicates that the language used during the trial as English/Kiswahili, so one cannot tell whether the proceedings were conducted in English and translated into Kiswahili or Kiswahili translated into English or what was the exact language that the appellant elected to use.
55. The accused “own words” in answer to the charge would require to be recorded in the language used by the accused and translated into English. In the instant case, if the answer as indicated was “it is true” the assumption would be that the appellant knew and used English. The question that would arise then is why the court had to indicate English /Kiswahili.
56. The gap in language is key because the court ought to have been clear as to the language used during the proceedings. The issue of language becomes even more critical when one looks at the allegation by the appellant that she did not understand the implications or the consequences of the plea she was entering into.
57. The duty of the court in recording a guilty plea is well articulated in the case of ADAN –VS- REPUBLIC [1973] EA 445, as follows;
“(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 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 raise 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.”
58. The record of the trial court must speak for itself in respect of the matters set out in the authority above. As stated earlier on, it is not clear from the court record the exact language that the court used. The record therefore falls short of the expectation of the law since it could as well be that the accused never understood the proceedings.
59. It is important to emphasize that a trial court accepting a plea of guilty from an accused person who has been in a pre -trial detention should be very cautious since such a person appears before that court from a position of disadvantage having been held in custody which exerts pressure on an individual.
60. The appellant having been arrested on the 18 th August 2026 and held in pretrial detention until the 12 th September 2023 when she took plea, the court was under duty to make inquiries from her about her state even though she was held under the orders of court. See Odhiambo Olel vs Republic {1993} eKLr where the court emphasized on the court’s duty in assessing the voluntariness of a guilty plea. Although one may argue that the appellant in the Odhiambo Case had been illegally detained, detention is detention and there is need for caution in accepting guilty pleas from individuals who have had to undergo a pre-charge detention whether or not the pre-charge detention was court sanctioned. See also Ndede vs Rep {1989} eKLr.
61. The appellant has also contended that the elements of the offence were also not explained to her. The record reflects that the elements were stated to the accused but again though the court states “in a language that he or she understands” the language is not expressly stated.
62. In Juma Mwalenga Vs Rep {2018} KEHC 5837 (KLR) Mr. Justice P.J.O Otieno decried the use of plea templates by the trial courts and stated that due to the voluminous nature of work in those courts, although the courts may use templates, the same should be adopted with utmost alacrity and circumspection so that all critical details are not left out or ignored.
63. To the holding by my brother judge, this court adds that where such templates are used the court must be careful not to retain parts of the template that do not present the correct state of facts such as the fact of one being indicated as having been represented yet they were not.
64. The effect of the identified error on language and the indication that the appellant was represented yet she had no counsel render the plea of guilty equivocal.
65. This court cannot with certainty say that the appellant received a fair trial and that the plea was voluntary.
66. The serious of the charges and the severity of sentence imposed called for a heighted degree of vigilance in recording the guilty plea and a great degree of caution.
67. The court also notes that there was no conviction entered upon the admission of facts. The decision in ADAN –VS- REPUBLIC [1973] EA 445 makes it clear that a conviction must be recorded if the court is satisfied that the plea is unequivocal. The court having failed to enter a conviction left the matter at the entry of a guilty plea yet the law requires that if a conviction is reached the same should be stated with clarity complete with the offence and section of the law relating to the offence. The errors are grave and they go to the root of a fair trial. The irregularities lead to the courts finding that the plea was equivocal and the sentences cannot stand.
68. The court therefore finds that this appeal has merit and the same is hereby allowed.
69. Having reached that finding, this court must now consider whether an order for a retrial is merited in the circumstances.
70. The answer to that question is an emphatic yes. The errors identified in the record of the lower court simply lead to the conclusion that there was a mistrial in that in court. The offences are serious and they involve an innocent minor victim. The lapse of barely two years and a few months since the arrest of the appellant cannot be said to be an inordinate period that may render a retrial impossible. Further, since there was no taking of evidence in the earlier proceedings there cannot be case of the prosecution being given an opportunity to fill any gaps in the case.
71. The victim being a child this court takes into account the best interests of the Child under Section 8 of the Children Act and balancing the fair trial rights of the accused finds that it is indeed in the best interests of the child victim and that it is in the public interest and interests of the administration of justice that this matter be remanded to the trial court for rehearing.
72. An order for a retrial is hereby granted and the accused shall be arraigned before the Children Court Milimani on 22 nd June 2026 for the taking of a fresh plea and the matter be immediately set down for hearing before a magistrate of competent jurisdiction other than the one who convicted the appellant (Hon. A. G. MUNENE PM). The hearing to be on a priority basis considering the period the appellant has spent in custody.
73. It is so ordered.