REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. E012 OF 2025
KELVIN KIILU PETER..............................................................................APPLICANT
-VERSUS-
REPUBLIC .........................................................................................RESPONDENT
(Being an appeal on conviction and sentence in Chief Magistrate 's Court at Machakos in S.O Case No. E047of 2024 delivered on 22/08/2024)
JUDGEMENT
1. The Appellant KELVIN KIILU PETER was charged with the offence of Attempted Defilement contrary to section 9(1) (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that on 20th day of August 2024 in Kasinga area Machakos Sub-county within Machakos county intentionally attempted to cause his penis to penetrate the vagina of J.M a child aged four (4) years in violation of section 9(1) (2) of the Sexual Offences Act No. 3 of 2006.
2. He was in the alternative charged with the offence of Indecent Act with a child contrary to section 11(I) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that on 20th day of August 2024 in Kasinga area Machakos Sub-county within Machakos Sub-county within Machakos County, he intentionally touched the vagina of J.M a child aged four (4) years with his penis contrary to section 11 (I) of the Sexual Offences Act No. 3 of 2006.
3. The plea taking proceedings are recorded as follows:
22/8/2024
Before – Hon. V. Ochanda -SRM
Court Assistant – Miriam
Court prosecutor – Machuma
Accused - Present
Main Count: Nakubali
Prosecutor: Facts are that “one complainant 4 years old was home with the grandmother about 6p.m. The Accused (Appellant) called her and told her to take the Accused to wear a sweater. She followed you. Accused got to the building. Complainant told accused she wants to urinate. Accused removed her clothes. Accused also removed yours. Accused carried her. Accused touched your genitalia with that of the Accused. A woman Nancy came and found accused carrying the child in that position. She asked what accused was doing. Accused asked for forgiveness. She took the complainant and went with her. She reported to grandmother. They reported to the police. Accused was arrested and charged. We produce birth notification –(PExh.1), P3 form-(PExh.2), Clinic notes-(PExh.3) and PRC form –(PExh.4).
Accused: The facts are correct.
Court: The charges are explained to the accused again. The substantive justice is also explained to the accused person who responds.
Accused: Nakubali.
Court: Accused convicted on own plea of guilty.
Prosecutor: No previous records.
Mitigation: None
Court: I have considered the offence, the penalty and the mitigation. I have also considered the penalty provided for in the Sexual Offences Act that is 10 years in prison. I hereby sentence accused to serve 40 years in prison. Right of Appeal 14 days.
4. The Appellant has now challenged the conviction and sentence vide a Petition of Appeal dated 13th February 2025 based on the grounds below:-
a. THAT the learned trial magistrate erred in matters of law and fact by failing to observe that plea taking was not unequivocal contrary to section 207 (1)(2) of the Criminal Procedure Code.
b. THAT the learned trial magistrate erred in matters of law and fact by failing to properly consider his mitigation which is part of the trial process.
c. THAT the learned trial magistrate imposed a sentence of ten (10) years imprisonment which is manifestly harsh and excessive.
d. THAT the learned trial magistrate erred in law and facts by failing to observe that he was unrepresented which prosecution took advantage of by commencing a trial.
5. The appeal was heard by way of written submissions.
6. According to the appellant’s written submissions, when he pleaded guilty to the charge the court did not explain to him the consequences of pleading guilty to a serious charge such as the present one.
7. The Respondent opposed the appeal. Ms. Ms. Agatha Abang submitted that the Appellant pleaded guilty to the charges as read out to him. He pleaded guilty and confirmed the facts were true. He was thus convicted on his own plea of guilty and was rightfully sentenced as well. She further submitted that since the conviction and sentence of the Applicant arises from his plea of guilty, Section 348 of the CPC bars appeal from subordinate courts where an accused was convicted upon of guilty except on the extent and legality of sentence.
Analysis and Determination
8. Having carefully perused the proceedings on record on the plea taking and sentence and the two rival submissions, I will proceed to determine the appeal. The duty of the first appellate court was clearly spelt out in the case of OKENO V.REP 1972 E.A. 32. The Court of Appeal stated that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya v R [1957] EA 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala v R [1957] EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post [1958] EA 424.”
9. Before I consider the grounds of appeal, I think it is proper to consider the provisions of Section 348 of the Criminal Procedure Code which precludes an appeal where an accused person has pleaded guilty, Section 348 Criminal Procedure Code provides as follows:
“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence”.
10. In the case of Olel v Republic (1989) KLR 444 (C.A. 417/1987) the Court of Appeal held:
“Where a plea is unequivocal, an appeal against conviction does not lie: Section 348 of the Criminal Procedure Code (Cap.75) does not merely limit the right of appeal in such cases but bars it completely.”
11. By virtue of the above section and above cited case, the Appellant is barred from challenging the conviction and his only recourse is to challenge the extent or legality of the sentence imposed on him by the trial court.
12. However, where the court finds that the plea was not unequivocal, then it can intervene. Even after a plea of guilty is entered, if the accused raises issues or says anything that seems to suggest that he does not agree with the facts; the court must enter a plea of not guilty or enquire as to what the accused.
13. The main ground in this appeal is whether the plea was unequivocal.
14. Section 207 of the Criminal Procedure Code outlines the procedure that is to be followed during plea taking. It provides that:
(l) 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 court 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.
(3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided
15. This section further provides that when an accused person pleads guilty the admission should be recorded as nearly as possible in the words he used and the accused sentence. The Prosecution is also awarded an opportunity to outline to the court the facts upon which the charge is founded. In Jackson Wambua v Republic [2022] eKLR Odunga J (as he was then) in quoting Ombena v Republic [1981] eKLR stated that the Court of Appeal outlined the manner of recording plea of guilty by quoting:
“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) (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.”
16. The above section does not give details on how a pea is to be taken.
In the celebrated case of Adan v Republic (1973) E.A. 445 the court went into detail on what plea taking entails. The court held as follows:
“When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is possible, then in a language which he speaks and understands. The magistrate should then explain to the accused person all the essential ingredients of the offence charged, if the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant fats. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of plea to “not guilty” and proceed to hold a trial. If the accused does not deny the facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused’s reply must, or course, be recorded.”
17. The court has gone through the proceedings of the trial court to establish whether the court complied with the guidelines given in the Adan case.
18. I must point out that Section 251 of the Penal Code provides for the offence of assault and its penalty thus:
“S.215 Assault causing actual bodily harm: Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years”
19. The proceedings show that when the Appellant pleaded guilty to the charge, the trial court did not explain to him the consequences of pleading guilty to such a serious charge he was facing. It is also not on record that the trial court warned the Appellant who was unrepresented on pleading guilty. The court did not explain to the Accused person that the offence he was about to plead guilty to or pleaded guilty to carried a mandatory minimum prison sentence of 10 years imprisonment or more.
20. No doubt, the Appellant's right to fair trial was infringed under Article 50(2)(b) of the constitution of Kenya 2010.The same provides as follows:
50 (2) Every accused person has the right to a fair trial, which includes the right—
(b) to be informed of the charge, with sufficient detail to answer it;
21. See W. Korir, J in in ABDALLAH MOHAMMED VS. REPUBLIC [2018] eKLR where he expressed himself as hereunder:
"A plea of guilty can only be entered in respect of an offence known to the law. ln 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. In my view, extra caution includes the question as to whether or not the facts as read out are true and whether the accused person would wish to make any comment. In fact, an accused person should be asked what he means by saying that the charge read to him is true. His explanation should then be captured on the record so as to form part of his plea. From the record, it is apparent that the Appellant was just but a lady 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”.
22. It is trite that the consequences of pleading guilty, the conviction and likely sentence should also be explained to the Accused person who pleads guilty to the charge. In K N vs. REPUBLIC [2016] eKLR it was held that:
"We think the court should also explain to the accused person the natural consequence of pleading guilty, the conviction and likely sentence. "
23. It is very important that in every circumstance in which the accused offers to enter a plea of guilty his or her Constitutional rights under Article 50 of the Constitution on fair trial rights should be explained so that he or she can confirm that his or her plea is unequivocal with full knowledge of the consequences. The right to a fair trial is a basic norm in the Constitution of Kenya and international human rights Law. It entrenches the right where an accused person is presumed innocent until proven guilty by the state discharging the evidential burden beyond reasonable doubt.
24. In Suleiman Musa Kimbiriwa v. Republic (criminal appeal 208 of 2017) , the Appellant's plea of guilty was found to be equivocal because: The trial magistrate failed to follow the guidelines in Adan v Republic articulated under Section 207 CPC. The appellant was not adequately warned of the consequences before pleading and was unrepresented. The Appellate Court allowed the appeal, noted the plea defect, and ordered a retrial rather than uphold the conviction.
25. The interpretation for English/Kiswahili prejudiced the Appellant. The court did not enquire from the Accused person on which language he understands. The facts as contained in the charge sheet were expressed in English. It was the duty of the Court to ensure that the said facts were not only read over to the Appellant but were read over to him in Kiswahili language which he had indicated that he understood. In EOJ V Republic (CRIMINAL APPEAL E002 OF 2021), the Appellate Court emphasized that even a simple reply like "True" may be insufficient as an unequivocal plea, unless the accused clearly admits each element of the charge.
26. The charge and elements must be read and explained in the language the accused understands. The accused must respond with words that show clear admission. The court must record the actual words used. The record shows of the typed certified court proceedings, the Appellant said that "the facts are correct" which was not the Appellant’s language of preference. The facts must be stated and admitted by the accused. Where the accused was unrepresented, young and illiterate like the present Appellant it is possible he did not understand what "attempted defilement" means, the gravity of the offence and consequences thereof.
27. The right to fair trial under Article 50(2) Every accused person has the right to a fair trial, which includes the right to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial; If this Article requires information to be given to a person, the information shall be given in language that the person understands. This was the position in Adan V Republic [1973] EA 445 - Standard for valid guilty plea.
28. See also the decision in David Njoroge Macharia V Republic [2011] eKLR -On right to legal representation in serious offences. In Boniface Mutisya V Republic [2021] eKLR - Plea of guilty was not unequivocal; court ordered retrial.
29. In Njuki VR [1985] KLR 22 it was held:
"That it has been sued time and again that the pleas recorded in the Courts such as I admit, I accept it, I plead guilty, it is true and so no cannot be considered as unequivocal plea."
30. Accordingly, I find the manner in which plea was taken did not adhere to the laid down principles, in other words, the law was not complied with. In this case, the Appellant's language of preference was Kiswahili. The learned trial Magistrate failed to observe that the charge and all the essential ingredients of the offence were not explained to the Appellant in his language which was Kiswahili and which language he understands.
31. From the foregoing analysis, I find that this appeal has merit. The Appellant’s conviction is quashed, the sentence set aside and it is hereby ordered that the Appellant be forthwith set free unless he is otherwise lawfully held.
32. It is so ordered. This file is closed.
JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS THIS 4TH FEBRUARY 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 4TH FEBRUARY 2026
In the presence of:
Appellant in person
Ms. Agatha Abang for Respondent
Milly -Court Assistant
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. E012 OF 2025
KELVIN KIILU PETER..............................................................................APPLICANT
-VERSUS-
REPUBLIC .........................................................................................RESPONDENT
(Being an appeal on conviction and sentence in Chief Magistrate 's Court at Machakos in S.O Case No. E047of 2024 delivered on 22/08/2024)
JUDGEMENT
1. The Appellant KELVIN KIILU PETER was charged with the offence of Attempted Defilement contrary to section 9(1) (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that on 20th day of August 2024 in Kasinga area Machakos Sub-county within Machakos county intentionally attempted to cause his penis to penetrate the vagina of J.M a child aged four (4) years in violation of section 9(1) (2) of the Sexual Offences Act No. 3 of 2006.
2. He was in the alternative charged with the offence of Indecent Act with a child contrary to section 11(I) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that on 20th day of August 2024 in Kasinga area Machakos Sub-county within Machakos Sub-county within Machakos County, he intentionally touched the vagina of J.M a child aged four (4) years with his penis contrary to section 11 (I) of the Sexual Offences Act No. 3 of 2006.
3. The plea taking proceedings are recorded as follows:
22/8/2024
Before – Hon. V. Ochanda -SRM
Court Assistant – Miriam
Court prosecutor – Machuma
Accused - Present
Main Count: Nakubali
Prosecutor: Facts are that “one complainant 4 years old was home with the grandmother about 6p.m. The Accused (Appellant) called her and told her to take the Accused to wear a sweater. She followed you. Accused got to the building. Complainant told accused she wants to urinate. Accused removed her clothes. Accused also removed yours. Accused carried her. Accused touched your genitalia with that of the Accused. A woman Nancy came and found accused carrying the child in that position. She asked what accused was doing. Accused asked for forgiveness. She took the complainant and went with her. She reported to grandmother. They reported to the police. Accused was arrested and charged. We produce birth notification –(PExh.1), P3 form-(PExh.2), Clinic notes-(PExh.3) and PRC form –(PExh.4).
Accused: The facts are correct.
Court: The charges are explained to the accused again. The substantive justice is also explained to the accused person who responds.
Accused: Nakubali.
Court: Accused convicted on own plea of guilty.
Prosecutor: No previous records.
Mitigation: None
Court: I have considered the offence, the penalty and the mitigation. I have also considered the penalty provided for in the Sexual Offences Act that is 10 years in prison. I hereby sentence accused to serve 40 years in prison. Right of Appeal 14 days.
4. The Appellant has now challenged the conviction and sentence vide a Petition of Appeal dated 13th February 2025 based on the grounds below:-
a. THAT the learned trial magistrate erred in matters of law and fact by failing to observe that plea taking was not unequivocal contrary to section 207 (1)(2) of the Criminal Procedure Code.
b. THAT the learned trial magistrate erred in matters of law and fact by failing to properly consider his mitigation which is part of the trial process.
c. THAT the learned trial magistrate imposed a sentence of ten (10) years imprisonment which is manifestly harsh and excessive.
d. THAT the learned trial magistrate erred in law and facts by failing to observe that he was unrepresented which prosecution took advantage of by commencing a trial.
5. The appeal was heard by way of written submissions.
6. According to the appellant’s written submissions, when he pleaded guilty to the charge the court did not explain to him the consequences of pleading guilty to a serious charge such as the present one.
7. The Respondent opposed the appeal. Ms. Ms. Agatha Abang submitted that the Appellant pleaded guilty to the charges as read out to him. He pleaded guilty and confirmed the facts were true. He was thus convicted on his own plea of guilty and was rightfully sentenced as well. She further submitted that since the conviction and sentence of the Applicant arises from his plea of guilty, Section 348 of the CPC bars appeal from subordinate courts where an accused was convicted upon of guilty except on the extent and legality of sentence.
Analysis and Determination
8. Having carefully perused the proceedings on record on the plea taking and sentence and the two rival submissions, I will proceed to determine the appeal. The duty of the first appellate court was clearly spelt out in the case of OKENO V.REP 1972 E.A. 32. The Court of Appeal stated that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya v R [1957] EA 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala v R [1957] EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post [1958] EA 424.”
9. Before I consider the grounds of appeal, I think it is proper to consider the provisions of Section 348 of the Criminal Procedure Code which precludes an appeal where an accused person has pleaded guilty, Section 348 Criminal Procedure Code provides as follows:
“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence”.
10. In the case of Olel v Republic (1989) KLR 444 (C.A. 417/1987) the Court of Appeal held:
“Where a plea is unequivocal, an appeal against conviction does not lie: Section 348 of the Criminal Procedure Code (Cap.75) does not merely limit the right of appeal in such cases but bars it completely.”
11. By virtue of the above section and above cited case, the Appellant is barred from challenging the conviction and his only recourse is to challenge the extent or legality of the sentence imposed on him by the trial court.
12. However, where the court finds that the plea was not unequivocal, then it can intervene. Even after a plea of guilty is entered, if the accused raises issues or says anything that seems to suggest that he does not agree with the facts; the court must enter a plea of not guilty or enquire as to what the accused.
13. The main ground in this appeal is whether the plea was unequivocal.
14. Section 207 of the Criminal Procedure Code outlines the procedure that is to be followed during plea taking. It provides that:
(l) 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 court 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.
(3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided
15. This section further provides that when an accused person pleads guilty the admission should be recorded as nearly as possible in the words he used and the accused sentence. The Prosecution is also awarded an opportunity to outline to the court the facts upon which the charge is founded. In Jackson Wambua v Republic [2022] eKLR Odunga J (as he was then) in quoting Ombena v Republic [1981] eKLR stated that the Court of Appeal outlined the manner of recording plea of guilty by quoting:
“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) (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.”
16. The above section does not give details on how a pea is to be taken.
In the celebrated case of Adan v Republic (1973) E.A. 445 the court went into detail on what plea taking entails. The court held as follows:
“When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is possible, then in a language which he speaks and understands. The magistrate should then explain to the accused person all the essential ingredients of the offence charged, if the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant fats. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of plea to “not guilty” and proceed to hold a trial. If the accused does not deny the facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused’s reply must, or course, be recorded.”
17. The court has gone through the proceedings of the trial court to establish whether the court complied with the guidelines given in the Adan case.
18. I must point out that Section 251 of the Penal Code provides for the offence of assault and its penalty thus:
“S.215 Assault causing actual bodily harm: Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years”
19. The proceedings show that when the Appellant pleaded guilty to the charge, the trial court did not explain to him the consequences of pleading guilty to such a serious charge he was facing. It is also not on record that the trial court warned the Appellant who was unrepresented on pleading guilty. The court did not explain to the Accused person that the offence he was about to plead guilty to or pleaded guilty to carried a mandatory minimum prison sentence of 10 years imprisonment or more.
20. No doubt, the Appellant's right to fair trial was infringed under Article 50(2)(b) of the constitution of Kenya 2010.The same provides as follows:
50 (2) Every accused person has the right to a fair trial, which includes the right—
(b) to be informed of the charge, with sufficient detail to answer it;
21. See W. Korir, J in in ABDALLAH MOHAMMED VS. REPUBLIC [2018] eKLR where he expressed himself as hereunder:
"A plea of guilty can only be entered in respect of an offence known to the law. ln 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. In my view, extra caution includes the question as to whether or not the facts as read out are true and whether the accused person would wish to make any comment. In fact, an accused person should be asked what he means by saying that the charge read to him is true. His explanation should then be captured on the record so as to form part of his plea. From the record, it is apparent that the Appellant was just but a lady 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”.
22. It is trite that the consequences of pleading guilty, the conviction and likely sentence should also be explained to the Accused person who pleads guilty to the charge. In K N vs. REPUBLIC [2016] eKLR it was held that:
"We think the court should also explain to the accused person the natural consequence of pleading guilty, the conviction and likely sentence. "
23. It is very important that in every circumstance in which the accused offers to enter a plea of guilty his or her Constitutional rights under Article 50 of the Constitution on fair trial rights should be explained so that he or she can confirm that his or her plea is unequivocal with full knowledge of the consequences. The right to a fair trial is a basic norm in the Constitution of Kenya and international human rights Law. It entrenches the right where an accused person is presumed innocent until proven guilty by the state discharging the evidential burden beyond reasonable doubt.
24. In Suleiman Musa Kimbiriwa v. Republic (criminal appeal 208 of 2017) , the Appellant's plea of guilty was found to be equivocal because: The trial magistrate failed to follow the guidelines in Adan v Republic articulated under Section 207 CPC. The appellant was not adequately warned of the consequences before pleading and was unrepresented. The Appellate Court allowed the appeal, noted the plea defect, and ordered a retrial rather than uphold the conviction.
25. The interpretation for English/Kiswahili prejudiced the Appellant. The court did not enquire from the Accused person on which language he understands. The facts as contained in the charge sheet were expressed in English. It was the duty of the Court to ensure that the said facts were not only read over to the Appellant but were read over to him in Kiswahili language which he had indicated that he understood. In EOJ V Republic (CRIMINAL APPEAL E002 OF 2021), the Appellate Court emphasized that even a simple reply like "True" may be insufficient as an unequivocal plea, unless the accused clearly admits each element of the charge.
26. The charge and elements must be read and explained in the language the accused understands. The accused must respond with words that show clear admission. The court must record the actual words used. The record shows of the typed certified court proceedings, the Appellant said that "the facts are correct" which was not the Appellant’s language of preference. The facts must be stated and admitted by the accused. Where the accused was unrepresented, young and illiterate like the present Appellant it is possible he did not understand what "attempted defilement" means, the gravity of the offence and consequences thereof.
27. The right to fair trial under Article 50(2) Every accused person has the right to a fair trial, which includes the right to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial; If this Article requires information to be given to a person, the information shall be given in language that the person understands. This was the position in Adan V Republic [1973] EA 445 - Standard for valid guilty plea.
28. See also the decision in David Njoroge Macharia V Republic [2011] eKLR -On right to legal representation in serious offences. In Boniface Mutisya V Republic [2021] eKLR - Plea of guilty was not unequivocal; court ordered retrial.
29. In Njuki VR [1985] KLR 22 it was held:
"That it has been sued time and again that the pleas recorded in the Courts such as I admit, I accept it, I plead guilty, it is true and so no cannot be considered as unequivocal plea."
30. Accordingly, I find the manner in which plea was taken did not adhere to the laid down principles, in other words, the law was not complied with. In this case, the Appellant's language of preference was Kiswahili. The learned trial Magistrate failed to observe that the charge and all the essential ingredients of the offence were not explained to the Appellant in his language which was Kiswahili and which language he understands.
31. From the foregoing analysis, I find that this appeal has merit. The Appellant’s conviction is quashed, the sentence set aside and it is hereby ordered that the Appellant be forthwith set free unless he is otherwise lawfully held.
32. It is so ordered. This file is closed.
JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS THIS 4TH FEBRUARY 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 4TH FEBRUARY 2026
In the presence of:
Appellant in person
Ms. Agatha Abang for Respondent
Milly -Court Assistant