The Appellant Nashon Mwita was charged with the offence of defilement contrary to section 8(1) as read with section (3) of the Sexual Offences Act No. 3 of 2006.
The particulars of the offence are that on the diverse dates between 17th and 18th March 2023 at around 2100hrs at Nyamaranya Village, in Kuria West Sub-County within Migori County, Willfully and unlawfully caused his penis to penetrate the Vagina of N.C a child aged 13 years old.
In the Alternative count he was charged with the Offence of Committing an indecent Act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
The particulars to the alternative count are that on the diverse dates between 17th and 18th March 2023 at around 2100hrs at Nyamaranya Village, in Kuria West Sub-County within Migori County, Willfully and unlawfully committed an indecent act by touching the Vagina of N.C a child aged 13 years old with his penis.
He was convicted on his plea of guilty and sentenced to serve 20 years’ imprisonment by the Trial Magistrate.
The Appellant was aggrieved and dissatisfied by the conviction and sentence and lodged his petition for appeal which was undated on the following grounds:
1. That he pleaded guilty to the charge herein, due to a fact that it was his first appearance in court and he got confused and I did not understand what was required of him at the plea stage.
2. That the trial court erred in both law and facts by informing him of his constitutional right a lawyer as well enshrined under article 50 (2) (g) (h) of the Kenyan constitution 2010.
3. That the trial court erred in both law and facts;
4. That the trial court erred in both law facts by meting a harsh and excessive sentence.
Reasons wherefore he prayed that the conviction be quashed and sentence put aside and a retrial or any other order the court may grant be granted.
Directions were taken for hearing of the appeal by way of written submissions on 4th December 2024.
The Appellant’s written submissions are dated 29th August 2024 and he included five additional grounds.
His first ground of appeal was that all the ingredients of the offence of defilement contrary to section 8(1) as read with section 8(3) were not explained to him. He submitted that he was not made to admit or deny every element of the charges unequivocally and cited the case of Rex v Yonasani Egalu and Others [1942] 9 EACA 65 where the court held that it is most desirable not only that every constituent of the charge should be explained to the Accused, but that he should be required to admit or deny every constituent and that he fully understood the charge and pleaded guilty to every element of it unequivocally.
In his further submissions in regard to the second ground of appeal, the Appellant faulted the Trial court for failing to warn him on the consequences of his plea of guilty and relied on the case of Ngigi vs Republic (1987) KLR 98 without pointing to the relevant holding in the decision.
The Appellant also submitted that the Trial court did not swear the interpreter and cited the case of Republic vs Abdi Ali (1991) KLR 171 where the court said that
“A plea taken through an unofficially unsworn interpreter cannot be regarded as unequivocal.”
In his fourth ground of appeal, he faulted the Trial court for failing to make a finding that he was confused at the time of making the plea of guilty. Therein he submits that he was a first offender and aged 17 years old hence was confused at the time of his plea of guilty.
In his last ground of appeal, he submitted that the Trial court failed to provide him with an Advocate as per his constitutional right and cited Article 50(2) (g ) and (h) claiming that the trial was unfair.
The Appellant urged the court to set aside the sentence and admit him to a re-trial, and this court embraces his submission in its entirety.
The Respondent did not file any submissions.
ANALYSIS AND DETERMINATION
This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. In the often cited case of Okeno v Republic [1972] EA 32, the East Africa Court of Appeal stated on the duty of the court on first appeal that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.”
Likewise, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that:
“… the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.”
Having considered the grounds of Appeal, and reviewed/revisited the Trial Court proceedings afresh as well as the submissions by the rival parties, the issues for determination are: -
1. Whether the Appellant’s rights enshrined under Article 50(2) (g & h) of the Constitution of Kenya were observed?
2. Whether the Plea of Guilty entered was Unequivocal
3. Whether the Appellant was warned of the consequences of entering a plea of Guilty?
4. Whether the Trial Court was at fault for failing to swear the interpreter?
On whether the Appellant’s rights enshrined under Article 50(2) (g & h) of the Constitution of Kenya were observed the case of Republic v Karissa Chengo and 2 others [2015] eKLR fits and is relevant in this instant Appeal. In the said case, the Court of Appeal stated that:
“It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This Court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result’ and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arise in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise.”
In this case, the court proceedings dated both on 20/3/2023 and 21/3/2023 show that the Accused was informed of his right under article 50(2)(g) & (h) of the Constitution of Kenya and informed of his right to choose and be presented by an advocate and he was also encouraged to exercise the said right and informed of his entitlement to apply to the Legal Aid Board for assistance should he desire. The Trial Court was not under any obligation to allocate or avail an Advocate to the Appellant as he claims in his submissions as there was no evidence that substantial injustice would result if he was not assigned an advocate at the expense of the state.
On whether the Plea of guilty entered was unequivocal 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 as follows:
“(i) the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;
(ii) the accused’s own words should be recorded and if they are an admission, a plea 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) 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.”
Further in the case of Kinene V Republic [2016] eKLR the court held that
"Finally, courts have always held that extra caution needs to be taken in the case of undefended defendants who plead guilty. I have previously held that where an Accused Person is unrepresented, the duty of the Court to ensure the plea of guilty is unequivocal is heightened. In Paulo Malimi Mbusi v R Kiambu Crim. App. No. 8 of 2016 (unreported) this is what I said and I find it relevant here. In those cases [where there is an unrepresented Accused charged with a serious offence), care should always be taken to see that the Accused understands the elements of the offence, especially if the evidence suggests that he has a defence.....To put it plainly, then, one may add that where an unrepresented Accused Person pleads guilty to a serious charge which is likely to attract custodial sentence, the obligation of the court to ensure that the Accused Person understands the consequences of such a plea is heightened."
In this instant case, on 20/3/2023 the Trial Court asked the Appellant which language he understood best and should be used in the proceedings and he responded that he understood Kiswahili. The court then had the substances of the charge and every element thereof stated to him in the language he preferred and when asked whether the charges were true, he responded in Kiswahili that he was 17 years old. The Court then deferred the plea till later in the day and ordered for an Age Assessment of the Appellant.
Later the same day, the Coram continued and the Prosecutor presented the Age Assessment Report for the Accused dated 19/03/2023 that had already been done the previous day which indicated that he was between 18 to 20 years old. The charges and particulars of the Main count were read to the Appellant once more and explained to him in Kiswahili Language upon which he responded “Ukweli” to mean “It is True.” The Trial Court then informed the Appellant of the repercussions of plea of guilty conviction and he responded that he had Noted the same. The Trial Court then decided to defer the plea until the next day to ascertain that the Appellant understood the charges and the repercussions of entering a plea of guilty.
On 21/03/2023 The Trial Court had the charges read afresh to the Appellant in Kiswahili and reminded him of Article 50 (2) (g) of the constitution Once more and he responded in Kiswahili that “Ni Ukweli” to mean “It is True.” He was then read to the elements and facts of the charge against him in the language he could understand and he responded that “Maelezo ni ya Ukweli” to mean “The facts are True.”
Based on the foregoing, it is clear that the Trial Court took all the necessary steps to ensure that the Appellant understood the charges against him. Furthermore, the Trial Court even adjourned and deferred the plea date to the next day as well as had the charges and substances stated in Kiswahili to ascertain that the Appellant understood the charges against him. To that effect, I find that the plea taken was Unequivocal and the Appellant’s claim on his first ground of appeal that all the ingredients of the offence of defilement contrary to section 8(1) as read with section 8(3) were not explained to him is unfounded.
On Whether the Appellant was warned of the consequences of entering a plea of guilty in the Trial Court’s proceedings dated 20/3/2023 the charges and particulars of the Main count were read to the Appellant once more and explained to him in Kiswahili Language upon which he responded “Ukweli” to mean “It is True.” The Trial Court then informed the Appellant of the repercussions of plea of guilty and he responded that he had noted the same. Further, the Trial Court decided to defer the plea until the next day to ascertain that the Appellant understood the charges and the repercussions of entering a plea of guilty. On 21/3/2023 the charges were read afresh to the Appellant in Kiswahili and he was reminded of article 50 (2)(g) of the Constitution. As held in the case Kinene V Republic (Supra) the Trial Magistrate ensured the Appellant understood the consequences of his response to the charge, particulars of the charge and facts of the case by explaining and even deferring the process to ensure clarity on the part of the Appellant.
It is therefore clear that the Trial Court took all necessary measures to ensure that the Appellant understood the consequences of admitting the charge and heightened the same. Therefore, the Appellant’s claim that the Trial Court failed to warn him of the consequences of his plea of guilty is unfounded.
On whether the Trial Court was at fault for failing to swear the interpreter, W. Ouko J (as he then was) had this to say in SAIKO LEKERESIE v REPUBLIC [2011] eKLR
“…The appellant has also complained that the interpreter was not sworn. No law was cited in support of this. However, no prejudice was suffered as the appellant has not complained on the competence of the interpreter or accuracy of the interpretation.
In Philip Lepuyanpui & Lenkarus alias Mwokozi Vs. Republic Criminal Appeal No.283 of 2004, Ibrahim, J held that the Criminal Procedure Code does not provide for the swearing of an interpreter before interpretation. That that is an administration requirement. I am persuaded.”
In the instant case, the Appellant was asked which language he understood and should be used in the proceedings and he responded that Kiswahili was his preferred language. The proceedings went on with the preferred language and the Appellant actively responded in Kiswahili when the Charges were first read to him with “Ukweli” to mean “True.” Moreover, the Trial Court still deferred the plea until the next day and had the charges and substances read afresh to the Appellant in Kiswahili on 21/3/2023 upon which he responded “Ni Ukweli” to mean It is True. Subsequently facts were also read to him in the language of his choice and he again responded “maelezo ni ya ukweli” and a plea of guilty was entered.
The Appellant actively participated in the proceedings and did not raise any concern on the competence of the interpreter nor the accuracy of the interpretation. As such, his claim that the Trial Court failed to swear the Interpreter before interpretation is unfounded as he suffered no prejudice.
Based on the foregoing this court finds that the appeal lacks merit and the same is dismissed.
Right of Appeal within 14 days.
Dated, Signed and Delivered in Migori this 5th Day of June 2025.
The particulars of the offence are that on the diverse dates between 17th and 18th March 2023 at around 2100hrs at Nyamaranya Village, in Kuria West Sub-County within Migori County, Willfully and unlawfully caused his penis to penetrate the Vagina of N.C a child aged 13 years old.
In the Alternative count he was charged with the Offence of Committing an indecent Act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
The particulars to the alternative count are that on the diverse dates between 17th and 18th March 2023 at around 2100hrs at Nyamaranya Village, in Kuria West Sub-County within Migori County, Willfully and unlawfully committed an indecent act by touching the Vagina of N.C a child aged 13 years old with his penis.
He was convicted on his plea of guilty and sentenced to serve 20 years’ imprisonment by the Trial Magistrate.
The Appellant was aggrieved and dissatisfied by the conviction and sentence and lodged his petition for appeal which was undated on the following grounds:
1. That he pleaded guilty to the charge herein, due to a fact that it was his first appearance in court and he got confused and I did not understand what was required of him at the plea stage.
2. That the trial court erred in both law and facts by informing him of his constitutional right a lawyer as well enshrined under article 50 (2) (g) (h) of the Kenyan constitution 2010.
3. That the trial court erred in both law and facts;
4. That the trial court erred in both law facts by meting a harsh and excessive sentence.
Reasons wherefore he prayed that the conviction be quashed and sentence put aside and a retrial or any other order the court may grant be granted.
Directions were taken for hearing of the appeal by way of written submissions on 4th December 2024.
The Appellant’s written submissions are dated 29th August 2024 and he included five additional grounds.
His first ground of appeal was that all the ingredients of the offence of defilement contrary to section 8(1) as read with section 8(3) were not explained to him. He submitted that he was not made to admit or deny every element of the charges unequivocally and cited the case of Rex v Yonasani Egalu and Others [1942] 9 EACA 65 where the court held that it is most desirable not only that every constituent of the charge should be explained to the Accused, but that he should be required to admit or deny every constituent and that he fully understood the charge and pleaded guilty to every element of it unequivocally.
In his further submissions in regard to the second ground of appeal, the Appellant faulted the Trial court for failing to warn him on the consequences of his plea of guilty and relied on the case of Ngigi vs Republic (1987) KLR 98 without pointing to the relevant holding in the decision.
The Appellant also submitted that the Trial court did not swear the interpreter and cited the case of Republic vs Abdi Ali (1991) KLR 171 where the court said that
“A plea taken through an unofficially unsworn interpreter cannot be regarded as unequivocal.”
In his fourth ground of appeal, he faulted the Trial court for failing to make a finding that he was confused at the time of making the plea of guilty. Therein he submits that he was a first offender and aged 17 years old hence was confused at the time of his plea of guilty.
In his last ground of appeal, he submitted that the Trial court failed to provide him with an Advocate as per his constitutional right and cited Article 50(2) (g ) and (h) claiming that the trial was unfair.
The Appellant urged the court to set aside the sentence and admit him to a re-trial, and this court embraces his submission in its entirety.
The Respondent did not file any submissions.
ANALYSIS AND DETERMINATION
This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. In the often cited case of Okeno v Republic [1972] EA 32, the East Africa Court of Appeal stated on the duty of the court on first appeal that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.”
Likewise, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that:
“… the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.”
Having considered the grounds of Appeal, and reviewed/revisited the Trial Court proceedings afresh as well as the submissions by the rival parties, the issues for determination are: -
1. Whether the Appellant’s rights enshrined under Article 50(2) (g & h) of the Constitution of Kenya were observed?
2. Whether the Plea of Guilty entered was Unequivocal
3. Whether the Appellant was warned of the consequences of entering a plea of Guilty?
4. Whether the Trial Court was at fault for failing to swear the interpreter?
On whether the Appellant’s rights enshrined under Article 50(2) (g & h) of the Constitution of Kenya were observed the case of Republic v Karissa Chengo and 2 others [2015] eKLR fits and is relevant in this instant Appeal. In the said case, the Court of Appeal stated that:
“It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This Court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result’ and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arise in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise.”
In this case, the court proceedings dated both on 20/3/2023 and 21/3/2023 show that the Accused was informed of his right under article 50(2)(g) & (h) of the Constitution of Kenya and informed of his right to choose and be presented by an advocate and he was also encouraged to exercise the said right and informed of his entitlement to apply to the Legal Aid Board for assistance should he desire. The Trial Court was not under any obligation to allocate or avail an Advocate to the Appellant as he claims in his submissions as there was no evidence that substantial injustice would result if he was not assigned an advocate at the expense of the state.
On whether the Plea of guilty entered was unequivocal 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 as follows:
“(i) the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;
(ii) the accused’s own words should be recorded and if they are an admission, a plea 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) 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.”
Further in the case of Kinene V Republic [2016] eKLR the court held that
"Finally, courts have always held that extra caution needs to be taken in the case of undefended defendants who plead guilty. I have previously held that where an Accused Person is unrepresented, the duty of the Court to ensure the plea of guilty is unequivocal is heightened. In Paulo Malimi Mbusi v R Kiambu Crim. App. No. 8 of 2016 (unreported) this is what I said and I find it relevant here. In those cases [where there is an unrepresented Accused charged with a serious offence), care should always be taken to see that the Accused understands the elements of the offence, especially if the evidence suggests that he has a defence.....To put it plainly, then, one may add that where an unrepresented Accused Person pleads guilty to a serious charge which is likely to attract custodial sentence, the obligation of the court to ensure that the Accused Person understands the consequences of such a plea is heightened."
In this instant case, on 20/3/2023 the Trial Court asked the Appellant which language he understood best and should be used in the proceedings and he responded that he understood Kiswahili. The court then had the substances of the charge and every element thereof stated to him in the language he preferred and when asked whether the charges were true, he responded in Kiswahili that he was 17 years old. The Court then deferred the plea till later in the day and ordered for an Age Assessment of the Appellant.
Later the same day, the Coram continued and the Prosecutor presented the Age Assessment Report for the Accused dated 19/03/2023 that had already been done the previous day which indicated that he was between 18 to 20 years old. The charges and particulars of the Main count were read to the Appellant once more and explained to him in Kiswahili Language upon which he responded “Ukweli” to mean “It is True.” The Trial Court then informed the Appellant of the repercussions of plea of guilty conviction and he responded that he had Noted the same. The Trial Court then decided to defer the plea until the next day to ascertain that the Appellant understood the charges and the repercussions of entering a plea of guilty.
On 21/03/2023 The Trial Court had the charges read afresh to the Appellant in Kiswahili and reminded him of Article 50 (2) (g) of the constitution Once more and he responded in Kiswahili that “Ni Ukweli” to mean “It is True.” He was then read to the elements and facts of the charge against him in the language he could understand and he responded that “Maelezo ni ya Ukweli” to mean “The facts are True.”
Based on the foregoing, it is clear that the Trial Court took all the necessary steps to ensure that the Appellant understood the charges against him. Furthermore, the Trial Court even adjourned and deferred the plea date to the next day as well as had the charges and substances stated in Kiswahili to ascertain that the Appellant understood the charges against him. To that effect, I find that the plea taken was Unequivocal and the Appellant’s claim on his first ground of appeal that all the ingredients of the offence of defilement contrary to section 8(1) as read with section 8(3) were not explained to him is unfounded.
On Whether the Appellant was warned of the consequences of entering a plea of guilty in the Trial Court’s proceedings dated 20/3/2023 the charges and particulars of the Main count were read to the Appellant once more and explained to him in Kiswahili Language upon which he responded “Ukweli” to mean “It is True.” The Trial Court then informed the Appellant of the repercussions of plea of guilty and he responded that he had noted the same. Further, the Trial Court decided to defer the plea until the next day to ascertain that the Appellant understood the charges and the repercussions of entering a plea of guilty. On 21/3/2023 the charges were read afresh to the Appellant in Kiswahili and he was reminded of article 50 (2)(g) of the Constitution. As held in the case Kinene V Republic (Supra) the Trial Magistrate ensured the Appellant understood the consequences of his response to the charge, particulars of the charge and facts of the case by explaining and even deferring the process to ensure clarity on the part of the Appellant.
It is therefore clear that the Trial Court took all necessary measures to ensure that the Appellant understood the consequences of admitting the charge and heightened the same. Therefore, the Appellant’s claim that the Trial Court failed to warn him of the consequences of his plea of guilty is unfounded.
On whether the Trial Court was at fault for failing to swear the interpreter, W. Ouko J (as he then was) had this to say in SAIKO LEKERESIE v REPUBLIC [2011] eKLR
“…The appellant has also complained that the interpreter was not sworn. No law was cited in support of this. However, no prejudice was suffered as the appellant has not complained on the competence of the interpreter or accuracy of the interpretation.
In Philip Lepuyanpui & Lenkarus alias Mwokozi Vs. Republic Criminal Appeal No.283 of 2004, Ibrahim, J held that the Criminal Procedure Code does not provide for the swearing of an interpreter before interpretation. That that is an administration requirement. I am persuaded.”
In the instant case, the Appellant was asked which language he understood and should be used in the proceedings and he responded that Kiswahili was his preferred language. The proceedings went on with the preferred language and the Appellant actively responded in Kiswahili when the Charges were first read to him with “Ukweli” to mean “True.” Moreover, the Trial Court still deferred the plea until the next day and had the charges and substances read afresh to the Appellant in Kiswahili on 21/3/2023 upon which he responded “Ni Ukweli” to mean It is True. Subsequently facts were also read to him in the language of his choice and he again responded “maelezo ni ya ukweli” and a plea of guilty was entered.
The Appellant actively participated in the proceedings and did not raise any concern on the competence of the interpreter nor the accuracy of the interpretation. As such, his claim that the Trial Court failed to swear the Interpreter before interpretation is unfounded as he suffered no prejudice.
Based on the foregoing this court finds that the appeal lacks merit and the same is dismissed.
Right of Appeal within 14 days.
Dated, Signed and Delivered in Migori this 5th Day of June 2025.