1. The appellant, Mariam Kerubo Mong'are, was charged before the Chief Magistrate's Court at Nyamira in Nyamira CMCR Case No. E774 of 2025 with the offence of aiding and abetting the commission of female genital mutilation contrary to section 20 of the Prohibition of Female Genital Mutilation Act as set out in the Charge Sheet dated 03rd December 2025.
2. The Certified Proceedings dated 03rd December 2025 reveal that the appellant, she admitted the charge and the learned trial magistrate convicted her on her own plea of guilty and deferred sentence pending the preparation of a pre-sentence report. Thereafter, by the Sentence dated 08th December 2025, the trial court sentenced the appellant to three (3) years' imprisonment.
3. Aggrieved by both conviction and sentence, the appellant lodged a Petition of Appeal dated 22nd May 2026, raising the following grounds:
1) That the charge sheet was defective.
2) That the trial court failed to consider her mitigation.
3) That the proper procedure for taking a plea of guilty was not followed.
4) That the trial court failed to inform her of her constitutional right to legal representation under Article 50(2)(g) and (h) of the Constitution.
5) That the sentence imposed was harsh and excessive.
6) That the trial court failed to take into account the period spent in custody before sentence.
4. The appeal was canvassed by way of written submissions filed by Arosi Orang'o & Associates Advocates for the appellant on 25th May 2026 and by Mr. Joel K. Chirchir, Deputy Director of Public Prosecutions, for the respondent on 17th June 2026.
5. I have carefully considered the record of appeal, the written submissions and the applicable law, and I now turn to determine the issues raised in the appeal.
6. The first issue is whether the plea of guilty was unequivocal. The appellant contended that the plea was not unequivocal because the language used during plea taking was not properly recorded. She relied on Adan v Republic (1973) EA 445, in which the Court held that before a plea of guilty can be accepted, the charge and every essential ingredient must be explained to the accused in a language he or she understands, the accused's own words recorded, the prosecution facts narrated, and the accused afforded an opportunity to admit or dispute those facts.
7. I have examined the Certified Proceedings dated 03rd December 2025. Interpretation was expressly recorded as English, Kiswahili and Ekegusii. Although the appellant alleged that the language used was not properly recorded, she did not state which of the recorded languages she did not understand. The record further shows that the charge and its essential ingredients were explained to her, she admitted the charge, the facts were narrated by the prosecution and admitted without qualification before conviction was entered. I am therefore satisfied that the plea-taking procedure complied with section 207 of the Criminal Procedure Code. The plea was unequivocal and, by virtue of section 348 of the Criminal Procedure Code, the appeal against conviction cannot succeed.
8. The second issue for determination is whether the charge sheet was defective. The appellant contended that she ought to have been charged under section 20(a) or (b) as read with section 29 of the Prohibition of Female Genital Mutilation Act rather than under section 20 of the Act. The respondent, on the other hand, maintained that the charge sheet properly disclosed the offence known to law and that, in any event, any defect would be curable under section 382 of the Criminal Procedure Code.
9. I have carefully considered those submissions against the provisions of the Prohibition of Female Genital Mutilation Act. Section 29 of the Act provides that:
"A person who commits an offence under this Act is liable, on conviction, to imprisonment for a term of not less than three years, or to a fine of not less than two hundred thousand shillings, or both."
10. It is evident from the wording of that provision that section 29 does not create any offence but merely prescribes the penalty applicable upon conviction for offences created under the Act. The offence of aiding, abetting, counselling or procuring the commission of female genital mutilation is created by section 20. As the Court of Appeal observed in Simon Materu Munialu v Republic [2007] KECA 149 (KLR), the validity of a charge sheet depends upon whether it discloses an offence known to law by setting out its essential ingredients with sufficient clarity to enable an accused person to understand the case he or she is required to answer, and a charge is only defective where the manner in which it is framed occasions confusion, prejudice or a miscarriage of justice.
11. The charge sheet before the trial court cited section 20 of the Prohibition of Female Genital Mutilation Act and alleged in the particulars that the appellant wilfully and knowingly aided, abetted and assisted in the commission of female genital mutilation. Those particulars set out every essential ingredient of the offence and clearly informed the appellant of the accusation she was required to answer. Indeed, after the charge and every essential ingredient thereof had been explained to her, she admitted both the charge and the facts without qualification. I am therefore satisfied that the charge disclosed an offence known to law and that the appellant has failed to demonstrate that the manner in which it was framed occasioned any confusion, prejudice or miscarriage of justice. The contention that the charge sheet was defective is consequently without merit.
12. The third issue is whether the appellant's constitutional right to legal representation was violated. The appellant contended that, being an elderly lay person, the trial court ought to have informed her of her rights under Article 50(2)(g) and (h) of the Constitution. The respondent maintained that the proceedings were regular and that the conviction followed the appellant's voluntary plea of guilty.
13. Article 50(2)(g) guarantees every accused person the right to choose and be represented by an advocate and to be informed of that right, while Article 50(2)(h) provides for legal representation at State expense where substantial injustice would otherwise result. The appellant has not demonstrated that the alleged omission rendered her plea involuntary, impaired her understanding of the proceedings or occasioned any prejudice. On the contrary, the record shows that she understood the charge, admitted the charge and the facts without qualification, and participated in the proceedings. I therefore find no merit in this ground of appeal.
14. The fourth issue is whether the trial court failed to consider the appellant's mitigation. The appellant contended that the learned trial magistrate failed to accord due weight to her advanced age and personal circumstances before passing sentence.
15. Mitigation is a critical component of the sentencing process because it enables the court to arrive at an appropriate and suitable sentence after taking into account the offender's personal circumstances and all other relevant factors. A failure to consider mitigation may result in the imposition of a sentence that is unreasonable, excessive or grossly inadequate, as was observed in Fatuma Hassan Salo v Republic [2006] eKLR. The record, however, does not bear out the appellant's contention that her mitigation was disregarded. The certified proceedings show that, following her conviction, the learned trial magistrate deferred sentencing and directed that a pre-sentence report be prepared rather than proceeding immediately to sentence. When the matter came up for sentencing, the learned trial magistrate expressly considered that report and recorded the appellant's advanced age and frailty before determining the appropriate sentence. The decision to call for a pre-sentence report, coupled with the express consideration of the appellant's personal circumstances in the sentencing remarks, demonstrates that the learned trial magistrate undertook an individualized sentencing exercise rather than imposing sentence mechanically or without regard to the appellant's mitigation. The complaint that the trial court failed to consider the appellant's mitigation is therefore not supported by the record.
16. The fifth issue is whether the sentence imposed was harsh and excessive. The appellant contended that, in view of her advanced age, the trial court ought to have imposed a more lenient sentence. The respondent submitted that the sentence imposed was lawful.
17. The appellant was convicted of aiding and abetting the commission of female genital mutilation contrary to section 20 of the Prohibition of Female Genital Mutilation Act. That provision empowers the sentencing court, upon conviction, to impose imprisonment for a term of not less than three years, a fine of not less than KES. 200,000, or both. The learned trial magistrate deferred sentencing, called for a pre-sentence report and expressly considered the appellant's advanced age and frailty before imposing sentence. However, in concluding that the court's hands were tied by the prescribed minimum sentence of imprisonment, the learned trial magistrate misapprehended the scope of the discretion conferred by section 20. The statute did not make imprisonment mandatory but vested the court with a choice between imprisonment, a fine, or both, depending on the circumstances of the particular case.
18. Female genital mutilation is a grave violation of bodily integrity, human dignity and the constitutional rights of women and girls, and those who aid or abet its commission facilitate the perpetuation of a harmful practice which Parliament has rightly sought to eradicate. Nevertheless, sentencing is an individualized exercise requiring the court to balance the gravity of the offence against the offender's personal circumstances. In the present case, the appellant is of advanced age and frail, those circumstances were acknowledged in the pre-sentence report and by the learned trial magistrate, and there is nothing on the record to suggest that a monetary penalty would have been inadequate to meet the ends of justice. In those circumstances, I am satisfied that this is an appropriate case for this Court to interfere with the sentence, not because the offence lacks seriousness, but because the trial court failed to appreciate that section 20 permitted the imposition of a fine in lieu of imprisonment.
19. The sixth and final issue is whether the trial court failed to take into account the period the appellant spent in custody before sentence as required by section 333(2) of the Criminal Procedure Code.
20. The record shows that the appellant was arrested on 02nd December 2025, arraigned on 03rd December 2025 and sentenced on 08th December 2025. Although the period spent in pre-sentence custody was relatively short, section 333(2) of the Criminal Procedure Code requires every sentencing court to take that period into account. The learned trial magistrate did not expressly indicate that the period spent in custody had been considered. To that limited extent, the appeal succeeds.
21. In the result, I find no merit in the appeal against conviction. The appellant's plea of guilty was unequivocal, the charge sheet properly disclosed the offence known to law, her constitutional right to legal representation was not violated, and the record demonstrates that the learned trial magistrate duly considered her mitigation before passing sentence.
22. However, for the reasons already given regarding sentence, the appeal against sentence succeeds. The sentence of three (3) years' imprisonment is hereby set aside and substituted with a fine of KES. 200,000, and in default of payment the appellant shall serve three (3) years' imprisonment, the default term being computed from 02nd December 2025, the date of the appellant's arrest, in recognition of the period already spent in lawful custody.
2. The Certified Proceedings dated 03rd December 2025 reveal that the appellant, she admitted the charge and the learned trial magistrate convicted her on her own plea of guilty and deferred sentence pending the preparation of a pre-sentence report. Thereafter, by the Sentence dated 08th December 2025, the trial court sentenced the appellant to three (3) years' imprisonment.
3. Aggrieved by both conviction and sentence, the appellant lodged a Petition of Appeal dated 22nd May 2026, raising the following grounds:
1) That the charge sheet was defective.
2) That the trial court failed to consider her mitigation.
3) That the proper procedure for taking a plea of guilty was not followed.
4) That the trial court failed to inform her of her constitutional right to legal representation under Article 50(2)(g) and (h) of the Constitution.
5) That the sentence imposed was harsh and excessive.
6) That the trial court failed to take into account the period spent in custody before sentence.
4. The appeal was canvassed by way of written submissions filed by Arosi Orang'o & Associates Advocates for the appellant on 25th May 2026 and by Mr. Joel K. Chirchir, Deputy Director of Public Prosecutions, for the respondent on 17th June 2026.
5. I have carefully considered the record of appeal, the written submissions and the applicable law, and I now turn to determine the issues raised in the appeal.
6. The first issue is whether the plea of guilty was unequivocal. The appellant contended that the plea was not unequivocal because the language used during plea taking was not properly recorded. She relied on Adan v Republic (1973) EA 445, in which the Court held that before a plea of guilty can be accepted, the charge and every essential ingredient must be explained to the accused in a language he or she understands, the accused's own words recorded, the prosecution facts narrated, and the accused afforded an opportunity to admit or dispute those facts.
7. I have examined the Certified Proceedings dated 03rd December 2025. Interpretation was expressly recorded as English, Kiswahili and Ekegusii. Although the appellant alleged that the language used was not properly recorded, she did not state which of the recorded languages she did not understand. The record further shows that the charge and its essential ingredients were explained to her, she admitted the charge, the facts were narrated by the prosecution and admitted without qualification before conviction was entered. I am therefore satisfied that the plea-taking procedure complied with section 207 of the Criminal Procedure Code. The plea was unequivocal and, by virtue of section 348 of the Criminal Procedure Code, the appeal against conviction cannot succeed.
8. The second issue for determination is whether the charge sheet was defective. The appellant contended that she ought to have been charged under section 20(a) or (b) as read with section 29 of the Prohibition of Female Genital Mutilation Act rather than under section 20 of the Act. The respondent, on the other hand, maintained that the charge sheet properly disclosed the offence known to law and that, in any event, any defect would be curable under section 382 of the Criminal Procedure Code.
9. I have carefully considered those submissions against the provisions of the Prohibition of Female Genital Mutilation Act. Section 29 of the Act provides that:
"A person who commits an offence under this Act is liable, on conviction, to imprisonment for a term of not less than three years, or to a fine of not less than two hundred thousand shillings, or both."
10. It is evident from the wording of that provision that section 29 does not create any offence but merely prescribes the penalty applicable upon conviction for offences created under the Act. The offence of aiding, abetting, counselling or procuring the commission of female genital mutilation is created by section 20. As the Court of Appeal observed in Simon Materu Munialu v Republic [2007] KECA 149 (KLR), the validity of a charge sheet depends upon whether it discloses an offence known to law by setting out its essential ingredients with sufficient clarity to enable an accused person to understand the case he or she is required to answer, and a charge is only defective where the manner in which it is framed occasions confusion, prejudice or a miscarriage of justice.
11. The charge sheet before the trial court cited section 20 of the Prohibition of Female Genital Mutilation Act and alleged in the particulars that the appellant wilfully and knowingly aided, abetted and assisted in the commission of female genital mutilation. Those particulars set out every essential ingredient of the offence and clearly informed the appellant of the accusation she was required to answer. Indeed, after the charge and every essential ingredient thereof had been explained to her, she admitted both the charge and the facts without qualification. I am therefore satisfied that the charge disclosed an offence known to law and that the appellant has failed to demonstrate that the manner in which it was framed occasioned any confusion, prejudice or miscarriage of justice. The contention that the charge sheet was defective is consequently without merit.
12. The third issue is whether the appellant's constitutional right to legal representation was violated. The appellant contended that, being an elderly lay person, the trial court ought to have informed her of her rights under Article 50(2)(g) and (h) of the Constitution. The respondent maintained that the proceedings were regular and that the conviction followed the appellant's voluntary plea of guilty.
13. Article 50(2)(g) guarantees every accused person the right to choose and be represented by an advocate and to be informed of that right, while Article 50(2)(h) provides for legal representation at State expense where substantial injustice would otherwise result. The appellant has not demonstrated that the alleged omission rendered her plea involuntary, impaired her understanding of the proceedings or occasioned any prejudice. On the contrary, the record shows that she understood the charge, admitted the charge and the facts without qualification, and participated in the proceedings. I therefore find no merit in this ground of appeal.
14. The fourth issue is whether the trial court failed to consider the appellant's mitigation. The appellant contended that the learned trial magistrate failed to accord due weight to her advanced age and personal circumstances before passing sentence.
15. Mitigation is a critical component of the sentencing process because it enables the court to arrive at an appropriate and suitable sentence after taking into account the offender's personal circumstances and all other relevant factors. A failure to consider mitigation may result in the imposition of a sentence that is unreasonable, excessive or grossly inadequate, as was observed in Fatuma Hassan Salo v Republic [2006] eKLR. The record, however, does not bear out the appellant's contention that her mitigation was disregarded. The certified proceedings show that, following her conviction, the learned trial magistrate deferred sentencing and directed that a pre-sentence report be prepared rather than proceeding immediately to sentence. When the matter came up for sentencing, the learned trial magistrate expressly considered that report and recorded the appellant's advanced age and frailty before determining the appropriate sentence. The decision to call for a pre-sentence report, coupled with the express consideration of the appellant's personal circumstances in the sentencing remarks, demonstrates that the learned trial magistrate undertook an individualized sentencing exercise rather than imposing sentence mechanically or without regard to the appellant's mitigation. The complaint that the trial court failed to consider the appellant's mitigation is therefore not supported by the record.
16. The fifth issue is whether the sentence imposed was harsh and excessive. The appellant contended that, in view of her advanced age, the trial court ought to have imposed a more lenient sentence. The respondent submitted that the sentence imposed was lawful.
17. The appellant was convicted of aiding and abetting the commission of female genital mutilation contrary to section 20 of the Prohibition of Female Genital Mutilation Act. That provision empowers the sentencing court, upon conviction, to impose imprisonment for a term of not less than three years, a fine of not less than KES. 200,000, or both. The learned trial magistrate deferred sentencing, called for a pre-sentence report and expressly considered the appellant's advanced age and frailty before imposing sentence. However, in concluding that the court's hands were tied by the prescribed minimum sentence of imprisonment, the learned trial magistrate misapprehended the scope of the discretion conferred by section 20. The statute did not make imprisonment mandatory but vested the court with a choice between imprisonment, a fine, or both, depending on the circumstances of the particular case.
18. Female genital mutilation is a grave violation of bodily integrity, human dignity and the constitutional rights of women and girls, and those who aid or abet its commission facilitate the perpetuation of a harmful practice which Parliament has rightly sought to eradicate. Nevertheless, sentencing is an individualized exercise requiring the court to balance the gravity of the offence against the offender's personal circumstances. In the present case, the appellant is of advanced age and frail, those circumstances were acknowledged in the pre-sentence report and by the learned trial magistrate, and there is nothing on the record to suggest that a monetary penalty would have been inadequate to meet the ends of justice. In those circumstances, I am satisfied that this is an appropriate case for this Court to interfere with the sentence, not because the offence lacks seriousness, but because the trial court failed to appreciate that section 20 permitted the imposition of a fine in lieu of imprisonment.
19. The sixth and final issue is whether the trial court failed to take into account the period the appellant spent in custody before sentence as required by section 333(2) of the Criminal Procedure Code.
20. The record shows that the appellant was arrested on 02nd December 2025, arraigned on 03rd December 2025 and sentenced on 08th December 2025. Although the period spent in pre-sentence custody was relatively short, section 333(2) of the Criminal Procedure Code requires every sentencing court to take that period into account. The learned trial magistrate did not expressly indicate that the period spent in custody had been considered. To that limited extent, the appeal succeeds.
21. In the result, I find no merit in the appeal against conviction. The appellant's plea of guilty was unequivocal, the charge sheet properly disclosed the offence known to law, her constitutional right to legal representation was not violated, and the record demonstrates that the learned trial magistrate duly considered her mitigation before passing sentence.
22. However, for the reasons already given regarding sentence, the appeal against sentence succeeds. The sentence of three (3) years' imprisonment is hereby set aside and substituted with a fine of KES. 200,000, and in default of payment the appellant shall serve three (3) years' imprisonment, the default term being computed from 02nd December 2025, the date of the appellant's arrest, in recognition of the period already spent in lawful custody.