(Being an appeal from the original conviction and sentence by Hon. F.M.Mulama, Resident Magistrate, in Lamu Principal Magistrate`s Court Criminal Case No.E124 0f 2024 delivered on 18/6/2025)
JUDGMENT
1. The appellant was convicted in count 1 for the offence of housebreaking contrary to section 304(1)(a) of the Penal Code and in count 2 for the offence of stealing contrary to section 268(1) as read together with 275 of the Penal Code.
2. The charges were read and the appellant pleaded guilty to both counts and a plea of guilty was entered in respect to each of the counts. The facts were subsequently read by the prosecution and the accused appellant confirmed that the facts were true. He was subsequently convicted on his own plea of guilt.
3. Upon mitigation, the trial court proceeded to sentence the appellant to serve five years imprisonment in respect to count 1 and two years imprisonment in respect to count 2. The sentences were ordered to run concurrently.
4. It is pursuant to this conviction and sentence that the appellant filed the instant appeal vide a petition of appeal dated 21/08/2025. In the said petition of appeal, he basically challenged the plea taking process and raised grounds that the trial court erred in law and fact by not ensuring that the plea of guilty was unequivocal; by failing to explain to the accused the charges in a language he understood; by failing to explain to the appellant in a language that he understood; the consequences of pleading guilty; by failing to conduct the plea in a proper and procedural manner; failing to call for presentencing report; in dismissing the appellant’s mitigation and by passing an excessive sentence taking into consideration that the appellant had no previous record.
5. The appeal was canvassed by way of written submissions. However, at the time of writing this judgment, the respondent’s submissions were not on record.
Appellant`s submissions
6. The appellant submitted that he did not understand the charges as the same were read in English language and when he responded “kweli” he did not understand what had been read to him in English language. That the court record does not indicate the language used during the plea taking. That the court ought to have recorded that the plea was read over to him in kiswaili language or interpreted to him in Kiswahili. It was thus submitted that the plea was not unequivocal. Reliance was placed on the case of Adan -vs- Republic (1973) E.A 445.
7. In respect to ground 3 and 4, it was submitted that the trial court erred in law and in fact by failing to explain to the appellant the consequences of pleading guilty and that the court had the duty to explain to the appellant that the offence carried a specific maximum sentence and in pleading guilty, the court will convict and sentence the appellant.
8. In respect to ground 6, it was submitted that the trial court erred in law by failing to call for pre-sentencing report or probation report so as to verify the appellant’s mitigation. It was submitted that had the trial court called for the pre-sentencing report or obtained the victim’s views, the sentence imposed may have been different.
9. It was further submitted that the trial court did not consider the appellant’s mitigation nor did it consider the fact that the appellant in pleading guilty to the charge saved the court’s time.
10. It was submitted that the sentence imposed on the Appellant was ideal for repeat offenders as opposed to first offenders. Further that the sentence was excessive and went against the judiciary sentencing guidelines.
Analysis and determination
11. This being a first appeal, it is the duty of the court to re-examine the evidence presented before the trial court and evaluate the same in order to determine whether the trial court erred in law and fact in the extent as raised in the petition of appeal, see Okeno –vs- Republic [1972] EA 32) . Even where no evidence was adduced by the prosecution witnesses (for instance where a plea of guilty is recorded) the appellate court is still obligated to scrutinize the proceedings in their entirety so as to ascertain whether or not the sentence was lawful and legal.
12. I have carefully considered the grounds of appeal, the record of the trial court and submissions tendered by the Appellant. The issues for determination are as to whether the plea by the appellant was unequivocal and if the answer to this question is in the negative, whether the sentence was excessive.
13. The appellant was convicted on his own plea of guilty. The procedure that a trial court should follow in recording a plea from an accused person is clearly set out in Section 207 of the Criminal procedure Code and which provision was expressed in the celebrated case of Adan –vs- Republic ( supra).
14. As a procedure, 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. The accused’s own words should then be recorded and if they are an admission, a plea of guilty should be recorded. 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. 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. If there is no change of plea, a conviction should be recorded and a statement of facts relevant to sentence together with the accused’s reply should be recorded.
15. In the instant case, the trial court’s record clearly indicates that the plea was taken in Kiswahili language. The answers by the Appellant are also indicated in Kiswahili language and then a translation into English was indicated. The record further indicates that the facts were read to the Appellant and exhibits then produced. The Appellant agreed to the facts and was convicted on his own plea of guilt. It is therefore clear that the process of taking plea up to that point cannot be said not to have been unequivocal. Despite the appellant’s submissions that the court did not explain to him and in a language that he understood, he did not raise any objection as to the language which was used as not being understandable to him. The language was indicated to be Kiswahili. It is my finding therefore that ground 2 of the petition of appeal cannot stand.
16. As was submitted on behalf of the appellant, I note that the trial court did not warn the appellant as to the consequences of pleading guilty. The importance of warning the accused person as to the consequences of pleading guilty were considered in the case of Elijah Njihia Wakianda –vs- Republic [2016] eKLR where the Court of Appeal held that;-
“........We also think that the elements of the offence are not complete if the sentence, especially if it is a severe and mandatory sentence, is not brought to the attention of the accused person. One surely ought to know the consequences of his virtual waiver of his trial rights that the Constitution guarantees him. That did not occur here and yet the appellant was unrepresented calling upon the trial court to be particularly solicitous of his welfare. The officer presiding is not to be a mere umpire aloofly observing the proceedings. He is the protector, guarantor and educator of the process ensuring that an unrepresented accused person is not lost at sea in the maze of the often- intimidating judicial process......”
(See also Paul Matungu vs. Republic [2006] eKLR).
17. This duty exists not only in relation to capital offences but other serious offences to whose sentences may be indefinite or long. The Court must ensure not only that the accused understands the ingredients of the offence with which he is charged at all the stages of the plea taking but that he also understands the sentence he faces where he opts to plead guilty as failure to do so is a violation of the accused’s right to fair trial and that the plea of guilty was in those circumstances not unequivocal. (See Fidel Malecha Weluchi –vs- Republic [2019] eKLR).
18. The trial court did not explain the appellant as to the consequences of him pleading guilty. It is my considered view that failure by the trial court to explain to the appellant as to the nature and magnitude of the charge he was facing and the severity of the sentence goes to the root of the unequivocality of the plea by the appellant. The offence that the appellant was facing in count 1 was a serious one that carried a sentence of imprisonment of upto 7 years. The court ought to have made sure that the appellant was aware of the gravity of the offence facing him.
19. From the above, it is clear that the plea by the appellant was equivocal and the same cannot be left to stand. I thereby quash the conviction and set aside the sentence.
20. The question then is whether this court should order a retrial.
21. The law as to when a retrial should be ordered has long been settled. In the case of Fatehali Manji –vs- Republic [1966] EA 343 the Court of Appeal when dealing with the same issue, gave the following guideline:-
“In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered when the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and circumstances and an order for a retrial should only be made where the interests of justice require it.”
22. In Muiruri –vs- R [2003] KLR 552, the Court held that:-
“It [retrial] will only be made where the interests of justice require it and if it is unlikely to cause injustice to the appellant. Some factors to consider would include, but are not limited to, illegalities or defects in the original trial. (See Zedekiah Ojuondo Manyala Vs Republic (Criminal Appeal No. 57 of 1980); the length of time which has elapsed since the arrest and arraignment of the appellant; whether the mistakes leading to the quashing of the conviction were entirely of the prosecution’s making or the court’s.”
23. In Mwangi –versus- Republic [1983] KLR 522, the Court of Appeal held at page 538 that:-
“We are aware that a retrial should not be ordered unless the appellate court is of the opinion, that on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result. In our view, there was evidence on record which might support the conviction of the appellant.”
24. From these authorities, it is clear that in deciding whether or not to order a retrial, the court must strike a balance between the interests of justice on the one hand and those of the accused person on the other.
25. In the present appeal, the records are clear that the appellant herein was arrested on 16/6/2025 and arraigned on 18/06/2025 and sentenced on the same day. He has been in custody since that day which is a period of more than ten months.
26. Taking all the above into consideration and particularly that the trial was illegal and that the victim of the offence deserves justice, it is my view that an order for retrial is most appropriate in the circumstances of the case. I therefore make the following orders; -
1. That the appeal herein be and is hereby allowed.
2. That the conviction against the accused is quashed and sentence set aside and substituted with an order for retrial.
3. That the appellant, upon delivery of this judgement, be forthwith presented at Principal Magistrate at Lamu law courts for taking of a plea before any other Magistrate of competent jurisdiction other than Hon. F.M Mulama, Resident Magistrate, within seven days.
It is so ordered.
Delivered, dated and signed at GARSEN this 20 th day of May 2026.
In the presence of:
Mr. Chitembwe for Appellant
Mr Oluoch for Respondent
Appellant- present virtually at G.K. Prison Hindi
Court Assistant - Rahma
JUDGMENT
1. The appellant was convicted in count 1 for the offence of housebreaking contrary to section 304(1)(a) of the Penal Code and in count 2 for the offence of stealing contrary to section 268(1) as read together with 275 of the Penal Code.
2. The charges were read and the appellant pleaded guilty to both counts and a plea of guilty was entered in respect to each of the counts. The facts were subsequently read by the prosecution and the accused appellant confirmed that the facts were true. He was subsequently convicted on his own plea of guilt.
3. Upon mitigation, the trial court proceeded to sentence the appellant to serve five years imprisonment in respect to count 1 and two years imprisonment in respect to count 2. The sentences were ordered to run concurrently.
4. It is pursuant to this conviction and sentence that the appellant filed the instant appeal vide a petition of appeal dated 21/08/2025. In the said petition of appeal, he basically challenged the plea taking process and raised grounds that the trial court erred in law and fact by not ensuring that the plea of guilty was unequivocal; by failing to explain to the accused the charges in a language he understood; by failing to explain to the appellant in a language that he understood; the consequences of pleading guilty; by failing to conduct the plea in a proper and procedural manner; failing to call for presentencing report; in dismissing the appellant’s mitigation and by passing an excessive sentence taking into consideration that the appellant had no previous record.
5. The appeal was canvassed by way of written submissions. However, at the time of writing this judgment, the respondent’s submissions were not on record.
Appellant`s submissions
6. The appellant submitted that he did not understand the charges as the same were read in English language and when he responded “kweli” he did not understand what had been read to him in English language. That the court record does not indicate the language used during the plea taking. That the court ought to have recorded that the plea was read over to him in kiswaili language or interpreted to him in Kiswahili. It was thus submitted that the plea was not unequivocal. Reliance was placed on the case of Adan -vs- Republic (1973) E.A 445.
7. In respect to ground 3 and 4, it was submitted that the trial court erred in law and in fact by failing to explain to the appellant the consequences of pleading guilty and that the court had the duty to explain to the appellant that the offence carried a specific maximum sentence and in pleading guilty, the court will convict and sentence the appellant.
8. In respect to ground 6, it was submitted that the trial court erred in law by failing to call for pre-sentencing report or probation report so as to verify the appellant’s mitigation. It was submitted that had the trial court called for the pre-sentencing report or obtained the victim’s views, the sentence imposed may have been different.
9. It was further submitted that the trial court did not consider the appellant’s mitigation nor did it consider the fact that the appellant in pleading guilty to the charge saved the court’s time.
10. It was submitted that the sentence imposed on the Appellant was ideal for repeat offenders as opposed to first offenders. Further that the sentence was excessive and went against the judiciary sentencing guidelines.
Analysis and determination
11. This being a first appeal, it is the duty of the court to re-examine the evidence presented before the trial court and evaluate the same in order to determine whether the trial court erred in law and fact in the extent as raised in the petition of appeal, see Okeno –vs- Republic [1972] EA 32) . Even where no evidence was adduced by the prosecution witnesses (for instance where a plea of guilty is recorded) the appellate court is still obligated to scrutinize the proceedings in their entirety so as to ascertain whether or not the sentence was lawful and legal.
12. I have carefully considered the grounds of appeal, the record of the trial court and submissions tendered by the Appellant. The issues for determination are as to whether the plea by the appellant was unequivocal and if the answer to this question is in the negative, whether the sentence was excessive.
13. The appellant was convicted on his own plea of guilty. The procedure that a trial court should follow in recording a plea from an accused person is clearly set out in Section 207 of the Criminal procedure Code and which provision was expressed in the celebrated case of Adan –vs- Republic ( supra).
14. As a procedure, 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. The accused’s own words should then be recorded and if they are an admission, a plea of guilty should be recorded. 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. 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. If there is no change of plea, a conviction should be recorded and a statement of facts relevant to sentence together with the accused’s reply should be recorded.
15. In the instant case, the trial court’s record clearly indicates that the plea was taken in Kiswahili language. The answers by the Appellant are also indicated in Kiswahili language and then a translation into English was indicated. The record further indicates that the facts were read to the Appellant and exhibits then produced. The Appellant agreed to the facts and was convicted on his own plea of guilt. It is therefore clear that the process of taking plea up to that point cannot be said not to have been unequivocal. Despite the appellant’s submissions that the court did not explain to him and in a language that he understood, he did not raise any objection as to the language which was used as not being understandable to him. The language was indicated to be Kiswahili. It is my finding therefore that ground 2 of the petition of appeal cannot stand.
16. As was submitted on behalf of the appellant, I note that the trial court did not warn the appellant as to the consequences of pleading guilty. The importance of warning the accused person as to the consequences of pleading guilty were considered in the case of Elijah Njihia Wakianda –vs- Republic [2016] eKLR where the Court of Appeal held that;-
“........We also think that the elements of the offence are not complete if the sentence, especially if it is a severe and mandatory sentence, is not brought to the attention of the accused person. One surely ought to know the consequences of his virtual waiver of his trial rights that the Constitution guarantees him. That did not occur here and yet the appellant was unrepresented calling upon the trial court to be particularly solicitous of his welfare. The officer presiding is not to be a mere umpire aloofly observing the proceedings. He is the protector, guarantor and educator of the process ensuring that an unrepresented accused person is not lost at sea in the maze of the often- intimidating judicial process......”
(See also Paul Matungu vs. Republic [2006] eKLR).
17. This duty exists not only in relation to capital offences but other serious offences to whose sentences may be indefinite or long. The Court must ensure not only that the accused understands the ingredients of the offence with which he is charged at all the stages of the plea taking but that he also understands the sentence he faces where he opts to plead guilty as failure to do so is a violation of the accused’s right to fair trial and that the plea of guilty was in those circumstances not unequivocal. (See Fidel Malecha Weluchi –vs- Republic [2019] eKLR).
18. The trial court did not explain the appellant as to the consequences of him pleading guilty. It is my considered view that failure by the trial court to explain to the appellant as to the nature and magnitude of the charge he was facing and the severity of the sentence goes to the root of the unequivocality of the plea by the appellant. The offence that the appellant was facing in count 1 was a serious one that carried a sentence of imprisonment of upto 7 years. The court ought to have made sure that the appellant was aware of the gravity of the offence facing him.
19. From the above, it is clear that the plea by the appellant was equivocal and the same cannot be left to stand. I thereby quash the conviction and set aside the sentence.
20. The question then is whether this court should order a retrial.
21. The law as to when a retrial should be ordered has long been settled. In the case of Fatehali Manji –vs- Republic [1966] EA 343 the Court of Appeal when dealing with the same issue, gave the following guideline:-
“In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered when the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and circumstances and an order for a retrial should only be made where the interests of justice require it.”
22. In Muiruri –vs- R [2003] KLR 552, the Court held that:-
“It [retrial] will only be made where the interests of justice require it and if it is unlikely to cause injustice to the appellant. Some factors to consider would include, but are not limited to, illegalities or defects in the original trial. (See Zedekiah Ojuondo Manyala Vs Republic (Criminal Appeal No. 57 of 1980); the length of time which has elapsed since the arrest and arraignment of the appellant; whether the mistakes leading to the quashing of the conviction were entirely of the prosecution’s making or the court’s.”
23. In Mwangi –versus- Republic [1983] KLR 522, the Court of Appeal held at page 538 that:-
“We are aware that a retrial should not be ordered unless the appellate court is of the opinion, that on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result. In our view, there was evidence on record which might support the conviction of the appellant.”
24. From these authorities, it is clear that in deciding whether or not to order a retrial, the court must strike a balance between the interests of justice on the one hand and those of the accused person on the other.
25. In the present appeal, the records are clear that the appellant herein was arrested on 16/6/2025 and arraigned on 18/06/2025 and sentenced on the same day. He has been in custody since that day which is a period of more than ten months.
26. Taking all the above into consideration and particularly that the trial was illegal and that the victim of the offence deserves justice, it is my view that an order for retrial is most appropriate in the circumstances of the case. I therefore make the following orders; -
1. That the appeal herein be and is hereby allowed.
2. That the conviction against the accused is quashed and sentence set aside and substituted with an order for retrial.
3. That the appellant, upon delivery of this judgement, be forthwith presented at Principal Magistrate at Lamu law courts for taking of a plea before any other Magistrate of competent jurisdiction other than Hon. F.M Mulama, Resident Magistrate, within seven days.
It is so ordered.
Delivered, dated and signed at GARSEN this 20 th day of May 2026.
In the presence of:
Mr. Chitembwe for Appellant
Mr Oluoch for Respondent
Appellant- present virtually at G.K. Prison Hindi
Court Assistant - Rahma