1. The Appellant was charged before the Senior Resident Magistrate's Court at Mwingi in Sexual Offence Case No. E035 of 2023 with the offence of incest contrary to section 20(1) of the Sexual Offences Act, No. 3 of 2006. The particulars of the main count alleged that on diverse dates between 2nd July 2023 and 27th October 2023, at Endiu Location in Mwingi Central Sub-County within Kitui County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of Edith Mwinzi Kanungwa, a girl aged 15 years, who was to his knowledge his daughter. An alternative count was also preferred.
2. The Appellant was arrested on 29th October 2023 and arraigned before the trial court on 30th October 2023. He pleaded guilty to the main count. The prosecution thereafter stated the facts upon which the charge was founded. The Appellant confirmed that the facts were correct and the trial court expressly convicted him on his own plea of guilty. Following mitigation, he was sentenced on 30th October 2023 to thirty years' imprisonment.
3. The Appellant challenges the conviction and sentence through his Amended Grounds of Appeal and Written Submissions dated 25th August 2026. His complaints relate principally to the manner in which the plea was taken, alleged irregularities in the proceedings, the treatment of the alternative count, the relationship between the charge and the facts, the medical documents, the alleged inducement of the plea and the legality and severity of the sentence.
4. The Respondent opposed the appeal through its Written Submissions dated 27th July 2026, maintaining that the plea was properly taken and contending that, because the complainant was below eighteen years, section 20(1) of the Sexual Offences Act required a sentence of life imprisonment.
5. I have considered the Charge Sheet, the proceedings of 30th October 2023, the P3 Form dated 30th October 2023 produced as PExh. 1, the Treatment Notes dated 30th October 2023 produced as PExh. 2, the Appellant's Amended Grounds of Appeal and Written Submissions dated 25th August 2026, and the Respondent's Written Submissions dated 27th July 2026.
6. The appeal raises four issues for determination, namely:
1) Whether the plea of guilty was unequivocal and was taken in accordance with the law;
2) Whether the irregularities complained of vitiated the proceedings;
3) Whether the facts admitted by the Appellant disclosed the offence charged; and
4) Whether the sentence of thirty years' imprisonment was lawful and, if so, whether it was harsh or excessive.
7. This being a first appeal, this Court is guided by the principles in Okeno v Republic [1972] EA 32, where the former Court of Appeal for East Africa held that a first appellate court is obliged to subject the evidence to a fresh and exhaustive examination, weigh the conflicting evidence, draw its own conclusions, and make due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.
8. The first issue is whether the Appellant’s plea was unequivocal. Section 207 of the Criminal Procedure Code sets out the procedure applicable to a plea of guilty. The substance of the charge and its essential ingredients must be explained to the accused in a language he understands, his response recorded and, upon an admission, the prosecution facts placed before him so that he may dispute, explain or qualify them before conviction. The question before this Court is therefore whether the proceedings of 30th October 2023, considered in their entirety, demonstrate an informed and unequivocal admission.
9. The proceedings show that the charge was initially read to the Appellant and he responded, “Ni ukweli.” The trial court thereafter explained the gravity of the offence and the prescribed penalty, following which the charge was read afresh to him in Kamba and he again responded, “It’s true.” The prosecution then narrated the facts, stating that the complainant was fifteen years old, was the Appellant’s daughter and had been left in his care; that during the night the Appellant caused penetration; and that when the complainant attempted to escape, he stopped her and again defiled her. Upon the facts being placed before him, the Appellant stated, “Facts are correct.” The trial court then recorded, “I convict the Accused on his own plea of guilty.” The sequence is material because the Appellant’s admission remained unchanged after the factual basis of the charge had been fully presented to him.
10. The manner in which the plea was recorded falls to be considered alongside Adan v Republic [1973] EA 445, where the Court set out the procedure for taking a plea of guilty. The Court emphasised the explanation of the charge and its essential ingredients in a language understood by the accused, followed by the prosecution’s statement of facts and an opportunity for the accused to dispute or explain them before conviction. In the present case, those stages are reflected in the proceedings: the Appellant admitted the charge, the court explained the gravity and prescribed penalty, the charge was read afresh in Kamba, the prosecution stated the facts and the Appellant expressly confirmed their correctness before the conviction was entered.
11. The omission in the initial entry to identify the language used must be viewed against the subsequent express recording that the charge was read afresh in Kamba. This is the context in which the decisions in Paul Kangeru Mwangi v Republic, High Court Criminal Appeal No. 128 of 2004, and Swahibu Simbauni Simiyu & Another v Republic, Criminal Appeal No. 243 of 2005 (unreported), become relevant. Those authorities emphasise the importance of demonstrating from the proceedings that the accused understood the language in which the charge was communicated. Here, the later entry supplies that information, while the Appellant’s response immediately thereafter and his subsequent acceptance of the prosecution facts provide further evidence of his understanding.
12. The complaint that the consequences of the guilty plea were not explained is similarly examined from the proceedings as recorded. In John Otieno Ojiwang v Republic, Criminal Appeal No. 36 of 2010, the Court considered the significance of an accused understanding the consequences of a guilty plea. The present record expressly states that the trial court explained the gravity of the offence and the prescribed penalty before the charge was read afresh in Kamba. The Appellant thereafter proceeded to mitigation, where he referred to his four children, his responsibility as their breadwinner, his consumption of alcohol and his personal circumstances. Those proceedings form part of the circumstances in which his earlier admission falls to be evaluated.
13. The Appellant’s complaint must also be considered against Boit v Republic [2022] KLR 815, on the importance of observing the safeguards surrounding a plea of guilty. The record contains the charge, the Appellant’s admission, the explanation of the gravity and prescribed penalty, the fresh reading of the charge in Kamba, the prosecution facts and the Appellant’s response that the facts were correct. The conviction was entered immediately thereafter. The question whether the plea was unequivocal is consequently answered from those recorded proceedings rather than from the form of any single entry.
14. The second issue concerns the effect of the entries “Accused – Not Available” and “Court – Not available” appearing against the alternative count. The Appellant contends that these entries rendered the proceedings that followed a nullity.
15. I have considered the entries in the context of the proceedings as a whole and note that they appear against the alternative count, after the Appellant had already pleaded guilty to the principal count. The subsequent proceedings were therefore not in respect of an accused person or a court being absent, but arose after the alternative count had ceased to require determination. The words “Not Available” are, in that context, a typographical rendering of “N/A”—Not Applicable. I therefore find that the entries did not signify the absence of the Appellant or the trial court and did not render the proceedings a nullity.
16. The third issue is whether the facts admitted by the Appellant disclosed the offence charged. The charge alleged that the Appellant committed incest with his 15-year-old daughter on diverse dates between 02nd July 2023 and 27th October 2023. The facts presented to the trial court were that on 27th October 2023, while the complainant was in the house with the Appellant, he defiled her severally, including twice during the night, and that she subsequently escaped and reported the matter.
17. I have considered the facts as recorded and admitted against the ingredients of the offence under section 20(1) of the Sexual Offences Act. The facts established the prohibited familial relationship between the Appellant and the complainant, her age, and sexual penetration by the Appellant. The fact that the particular acts narrated in the facts occurred on 27th October 2023, notwithstanding that the charge referred to diverse dates within the specified period, does not, on the facts of this case, render the conviction unsafe. The facts admitted by the Appellant disclosed the offence with which he was charged.
18. The fourth issue is whether the sentence of thirty years’ imprisonment was lawful and, if so, whether it was harsh or excessive. Section 20(1) of the Sexual Offences Act provides for a minimum term of ten years and, where the victim is below eighteen years, liability to imprisonment for life. In M.K. v Republic (2015) eKLR, the Court held that life imprisonment is not a mandatory minimum sentence under the proviso, but that the sentencing court has discretion to impose an appropriate term up to life imprisonment. The sentence of thirty years was therefore lawful.
19. In determining whether that sentence was excessive, I have considered the circumstances of the offence, the Appellant’s mitigation and the principles stated in State v Holder 1979 (2) SA and S v Rabic 1975 (4) SA 885(A) that punishment must be proportionate to both the offence and the offender, as well as S v Scott-Crossley [2008] (1) SACR 223, which recognises deterrence and retribution as legitimate considerations but cautions against a sentence that is excessive. The record shows that the trial court considered the Appellant’s mitigation before imposing thirty years’ imprisonment, and I find no error of principle or other basis for holding the sentence manifestly excessive.
20. The Respondent urges this Court to enhance the sentence to life imprisonment. Since the thirty-year sentence was within the discretion permitted by section 20(1), and the Appellant was not sentenced on the basis that life imprisonment was mandatory, there is no demonstrated illegality requiring correction. More importantly, the Appellant was not warned that his sentence was liable to enhancement and has not had an opportunity to address that proposed increase. I therefore decline the invitation to enhance the sentence and uphold the term of thirty years’ imprisonment.
21. In the result, the appeal against conviction fails. The conviction for incest contrary to section 20(1) of the Sexual Offences Act is upheld. The sentence of thirty (30) years’ imprisonment is also upheld.
22. The Appellant was arrested on 29th October 2023 and sentenced on 30th October 2023; accordingly, he shall be credited with one (1) day spent in custody pursuant to section 333(2) of the Criminal Procedure Code.
2. The Appellant was arrested on 29th October 2023 and arraigned before the trial court on 30th October 2023. He pleaded guilty to the main count. The prosecution thereafter stated the facts upon which the charge was founded. The Appellant confirmed that the facts were correct and the trial court expressly convicted him on his own plea of guilty. Following mitigation, he was sentenced on 30th October 2023 to thirty years' imprisonment.
3. The Appellant challenges the conviction and sentence through his Amended Grounds of Appeal and Written Submissions dated 25th August 2026. His complaints relate principally to the manner in which the plea was taken, alleged irregularities in the proceedings, the treatment of the alternative count, the relationship between the charge and the facts, the medical documents, the alleged inducement of the plea and the legality and severity of the sentence.
4. The Respondent opposed the appeal through its Written Submissions dated 27th July 2026, maintaining that the plea was properly taken and contending that, because the complainant was below eighteen years, section 20(1) of the Sexual Offences Act required a sentence of life imprisonment.
5. I have considered the Charge Sheet, the proceedings of 30th October 2023, the P3 Form dated 30th October 2023 produced as PExh. 1, the Treatment Notes dated 30th October 2023 produced as PExh. 2, the Appellant's Amended Grounds of Appeal and Written Submissions dated 25th August 2026, and the Respondent's Written Submissions dated 27th July 2026.
6. The appeal raises four issues for determination, namely:
1) Whether the plea of guilty was unequivocal and was taken in accordance with the law;
2) Whether the irregularities complained of vitiated the proceedings;
3) Whether the facts admitted by the Appellant disclosed the offence charged; and
4) Whether the sentence of thirty years' imprisonment was lawful and, if so, whether it was harsh or excessive.
7. This being a first appeal, this Court is guided by the principles in Okeno v Republic [1972] EA 32, where the former Court of Appeal for East Africa held that a first appellate court is obliged to subject the evidence to a fresh and exhaustive examination, weigh the conflicting evidence, draw its own conclusions, and make due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.
8. The first issue is whether the Appellant’s plea was unequivocal. Section 207 of the Criminal Procedure Code sets out the procedure applicable to a plea of guilty. The substance of the charge and its essential ingredients must be explained to the accused in a language he understands, his response recorded and, upon an admission, the prosecution facts placed before him so that he may dispute, explain or qualify them before conviction. The question before this Court is therefore whether the proceedings of 30th October 2023, considered in their entirety, demonstrate an informed and unequivocal admission.
9. The proceedings show that the charge was initially read to the Appellant and he responded, “Ni ukweli.” The trial court thereafter explained the gravity of the offence and the prescribed penalty, following which the charge was read afresh to him in Kamba and he again responded, “It’s true.” The prosecution then narrated the facts, stating that the complainant was fifteen years old, was the Appellant’s daughter and had been left in his care; that during the night the Appellant caused penetration; and that when the complainant attempted to escape, he stopped her and again defiled her. Upon the facts being placed before him, the Appellant stated, “Facts are correct.” The trial court then recorded, “I convict the Accused on his own plea of guilty.” The sequence is material because the Appellant’s admission remained unchanged after the factual basis of the charge had been fully presented to him.
10. The manner in which the plea was recorded falls to be considered alongside Adan v Republic [1973] EA 445, where the Court set out the procedure for taking a plea of guilty. The Court emphasised the explanation of the charge and its essential ingredients in a language understood by the accused, followed by the prosecution’s statement of facts and an opportunity for the accused to dispute or explain them before conviction. In the present case, those stages are reflected in the proceedings: the Appellant admitted the charge, the court explained the gravity and prescribed penalty, the charge was read afresh in Kamba, the prosecution stated the facts and the Appellant expressly confirmed their correctness before the conviction was entered.
11. The omission in the initial entry to identify the language used must be viewed against the subsequent express recording that the charge was read afresh in Kamba. This is the context in which the decisions in Paul Kangeru Mwangi v Republic, High Court Criminal Appeal No. 128 of 2004, and Swahibu Simbauni Simiyu & Another v Republic, Criminal Appeal No. 243 of 2005 (unreported), become relevant. Those authorities emphasise the importance of demonstrating from the proceedings that the accused understood the language in which the charge was communicated. Here, the later entry supplies that information, while the Appellant’s response immediately thereafter and his subsequent acceptance of the prosecution facts provide further evidence of his understanding.
12. The complaint that the consequences of the guilty plea were not explained is similarly examined from the proceedings as recorded. In John Otieno Ojiwang v Republic, Criminal Appeal No. 36 of 2010, the Court considered the significance of an accused understanding the consequences of a guilty plea. The present record expressly states that the trial court explained the gravity of the offence and the prescribed penalty before the charge was read afresh in Kamba. The Appellant thereafter proceeded to mitigation, where he referred to his four children, his responsibility as their breadwinner, his consumption of alcohol and his personal circumstances. Those proceedings form part of the circumstances in which his earlier admission falls to be evaluated.
13. The Appellant’s complaint must also be considered against Boit v Republic [2022] KLR 815, on the importance of observing the safeguards surrounding a plea of guilty. The record contains the charge, the Appellant’s admission, the explanation of the gravity and prescribed penalty, the fresh reading of the charge in Kamba, the prosecution facts and the Appellant’s response that the facts were correct. The conviction was entered immediately thereafter. The question whether the plea was unequivocal is consequently answered from those recorded proceedings rather than from the form of any single entry.
14. The second issue concerns the effect of the entries “Accused – Not Available” and “Court – Not available” appearing against the alternative count. The Appellant contends that these entries rendered the proceedings that followed a nullity.
15. I have considered the entries in the context of the proceedings as a whole and note that they appear against the alternative count, after the Appellant had already pleaded guilty to the principal count. The subsequent proceedings were therefore not in respect of an accused person or a court being absent, but arose after the alternative count had ceased to require determination. The words “Not Available” are, in that context, a typographical rendering of “N/A”—Not Applicable. I therefore find that the entries did not signify the absence of the Appellant or the trial court and did not render the proceedings a nullity.
16. The third issue is whether the facts admitted by the Appellant disclosed the offence charged. The charge alleged that the Appellant committed incest with his 15-year-old daughter on diverse dates between 02nd July 2023 and 27th October 2023. The facts presented to the trial court were that on 27th October 2023, while the complainant was in the house with the Appellant, he defiled her severally, including twice during the night, and that she subsequently escaped and reported the matter.
17. I have considered the facts as recorded and admitted against the ingredients of the offence under section 20(1) of the Sexual Offences Act. The facts established the prohibited familial relationship between the Appellant and the complainant, her age, and sexual penetration by the Appellant. The fact that the particular acts narrated in the facts occurred on 27th October 2023, notwithstanding that the charge referred to diverse dates within the specified period, does not, on the facts of this case, render the conviction unsafe. The facts admitted by the Appellant disclosed the offence with which he was charged.
18. The fourth issue is whether the sentence of thirty years’ imprisonment was lawful and, if so, whether it was harsh or excessive. Section 20(1) of the Sexual Offences Act provides for a minimum term of ten years and, where the victim is below eighteen years, liability to imprisonment for life. In M.K. v Republic (2015) eKLR, the Court held that life imprisonment is not a mandatory minimum sentence under the proviso, but that the sentencing court has discretion to impose an appropriate term up to life imprisonment. The sentence of thirty years was therefore lawful.
19. In determining whether that sentence was excessive, I have considered the circumstances of the offence, the Appellant’s mitigation and the principles stated in State v Holder 1979 (2) SA and S v Rabic 1975 (4) SA 885(A) that punishment must be proportionate to both the offence and the offender, as well as S v Scott-Crossley [2008] (1) SACR 223, which recognises deterrence and retribution as legitimate considerations but cautions against a sentence that is excessive. The record shows that the trial court considered the Appellant’s mitigation before imposing thirty years’ imprisonment, and I find no error of principle or other basis for holding the sentence manifestly excessive.
20. The Respondent urges this Court to enhance the sentence to life imprisonment. Since the thirty-year sentence was within the discretion permitted by section 20(1), and the Appellant was not sentenced on the basis that life imprisonment was mandatory, there is no demonstrated illegality requiring correction. More importantly, the Appellant was not warned that his sentence was liable to enhancement and has not had an opportunity to address that proposed increase. I therefore decline the invitation to enhance the sentence and uphold the term of thirty years’ imprisonment.
21. In the result, the appeal against conviction fails. The conviction for incest contrary to section 20(1) of the Sexual Offences Act is upheld. The sentence of thirty (30) years’ imprisonment is also upheld.
22. The Appellant was arrested on 29th October 2023 and sentenced on 30th October 2023; accordingly, he shall be credited with one (1) day spent in custody pursuant to section 333(2) of the Criminal Procedure Code.