REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO E105 OF 2024
REPUBLIC……………………………………………….….APPELLANNT
VERSUS
MERCY OTERO……………………………………………RESPONDENT
(Being an appeal from a sentence meted by Hon. T.M. Olando P.M. in Bungoma Chief Magistrate Court, Criminal Case No. E989 of 2024 was meted out on the 6 th day of August 2024.)
JUDGMENT
1. The respondent was charged and convicted of the following offences:
COUNT I: Making a document without authority contrary to section 357 (a) of the Penal Code.
Particulars of the offence : The respondent, on an unknown date at an unknown place within the Republic of Kenya, with others not before the court, with intent to deceive, and without lawful authority, made a certain document, namely, a Certificate of Registration for Reg No. A09006 dated 23 rd May 2016, in the name of the respondent, purporting it to be a genuine Certificate of Registration from the Kenya Laboratory Technicians and Technologists Board (KMLTTB).
COUNT II: Uttering a false document contrary to section 353 as read with section 349 of the Penal Code.
Particulars: On the 21 st day of June 2024, at Bungoma County Offices within Bungoma County, knowingly and fraudulently uttered a forged Certificate of registration Reg. No A09006 dated 23 rd May 2016 in the respondent’s name to Mr Luka Chemwolo, an auditor of the Kenya Medical Laboratory Technicians and Technologists Board (KMLTTB), purporting it to be a genuine Practice Licence issued by the said KMLTTB .
COUNT III : Making a document without authority contrary to section 357 (a) of the Penal Code
Particulars : On an unknown date at an unknown place within the Republic of Kenya, with others not before the court, with intent to deceive, without lawful authority, made a certain document, namely Practice License for Reg No A09006, valid until December 31 st , 2004, in the name of the respondent, purporting it to be a genuine practice license from the Kenya Medical Laboratory Technicians and Technologists Board (KMLTTB) .
COUNT IV: Uttering a false document contrary to section 353 as read with section 349 of the Penal Code.
Particulars: On the 21 st day of June 2024, at Bungoma County Offices within Bungoma County, knowingly and fraudulently uttered a forged practice license for Reg. No A09006 valid until December 31 st , 2004, in the respondent’s name to Mr Luka Chemwolo, an auditor of the Kenya Medical Laboratory Technicians and Technologists Board (KMLTTB), purporting it to be a genuine Practice Licence issued by the said KMLTTB .
COUNT V: Acting as a medical laboratory technologist in a health institution in Kenya without registration, contrary to section 19 (1) as read with section 19 (2) of the Medical Laboratory Technicians and Technologists Act No 10 of 1999
Particulars : On diverse dates between 1 st May 2024 and 21 st June 2024 at Chwele Sub-County Hospital within Bungoma County, acted as a Medical Laboratory Technologist without registration by the Kenya Medical Laboratory Technicians and Technologists Board (KMLTTB) as required by the Medical Laboratory Technicians and Technologists Act, CAP 253A Laws of Kenya .
2. The respondent pleaded guilty to the charge and was sentenced to nine months’ probation.
3. The appellant, dissatisfied with the sentence meted out on the respondent, has lodged this instant appeal on the following grounds:
1. The learned magistrate erred in law and in fact by sentencing the respondent to serve a non-custodial sentence of nine (9) months for the offence of acting as a medical lab technician contrary to section 19(1) as read with section 19(2) of the Medical Laboratory Technicians and Technologists Act, making a Document without Authority Contrary to Section 357(a) of Penal Code and Uttering a False Document contrary to section 353 of the Penal Code.
2. That the learned magistrate erred by sentencing the accused to probation when the law under which the accused was charged provides for a fine not exceeding one million shillings, or to imprisonment for a term not exceeding five years, or to both for the first count and to imprisonment of seven years for the second count.
3. That the learned magistrate erred in law and in fact by considering a pre-sentence report that was biased in the sense that the report did not take into account the views of the complainant or affected members of the public whose lives were at risk in the hands of unqualified characters.
4. The learned magistrate erred in law and in fact by considering a pre-sentence report that recommended a non-custodial sentence despite the confession by the respondent that she did not have the requisite qualifications to act as a medical lab technician.
5. That the learned magistrate erred in law and in fact by failing to appreciate the fact that the actions of the respondent in practising in a public facility without the requisite qualifications were exposing the lives of patients at risk, and as such failed to take into account the public interest.
6. The learned magistrate erred in law and in fact by failing to appreciate the fact that the actions of the respondent, practising with forged certificates and earning public salaries from the County Government at the expense of qualified individuals who are the majority and without such employment opportunities.
7. The learned magistrate erred in law and in fact by meting out a sentence that was too low and which does not inspire confidence in the criminal justice system in the circumstances, and we urge this court to enhance the sentence .
ANALYSIS AND DETERMINATION
4. The issues before the court are whether the plea was unequivocal and whether the sentence imposed on the respondent should be enhanced.
5. The appellant also argued that the plea was not unequivocal, as the prosecution stated ‘facts as stated’ and then produced 10 documents not described in the proceedings, to which the respondent replied, ‘it is true’. In Victor Naibei Kimati v Republic, the court ordered a retrial upon finding that the plea was improper. The presentence report was positive. It was submitted that the Judiciary Sentencing Guidelines Principles underpinning the sentence process include proportionality, equality, accountability and transparency.The appellant submits that the facts of the offence were not read to her and that the plea was equivocal; therefore, a retrial is need for a retrial.
6. The respondent submitted that the trial court did not err in sentencing the respondent to probation, noting that the objectives of sentencing consist of: deterrence, rehabilitation, accountability for one’s actions, protection of society, retribution, and denouncing the conduct of the offender for the harm done to the victim. Recent progressive presidents in the Kenyan Criminal Justice System are moving away from the continual embrace of the minimum mandatory statutory sentencing provisions to align the statutes with the Constitution.
7. I have carefully reviewed the proceedings before the trial court. The charge was read to the respondent, and the respondent’s response was “It is true.” The prosecution then read the facts as set out in the charge sheet, and the trial court recorded, “That is all.” The court then proceeded to convict the respondent on her own plea of guilty.
8. In Adan V Republic [1973] EA 445, the court stated 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 not possible, then in a language which he can speak and understand.
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 facts. 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 guilty, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. If the accused does not deny the alleged 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, of course, be recorded.”
9. It was not sufficient for the prosecution to state that the facts are as set out in the charge sheet, as the prosecutor is required to state the facts of the alleged offence. This was not done. Therefore, I find that the plea was equivocal. Consequently, the conviction and sentence are set aside.
10. The only question before the court is whether this is therefore a proper case for retrial. In Muiruri –vs- Republic (2003), KLR, 552 and Mwangi –vs- Republic (1983) KLR 522 and Fatehali Maji –vs- Republic (1966) EA, 343 the view expressed was that: -
“Although some factors may be considered, such as illegalities or defects in the original trial, the length of time elapsed since the arrest and arraignment of the appellant; whether mistakes leading to the quashing of the conviction were entirely the prosecution’s making or not; whether on a proper consideration of the admissible or potentially admissible evidence a conviction might result from a retrial; at the end of the day, each case must depend on its own particular facts and circumstances and an order for a retrial should only be made where the interests of justice requires it.”
11. In this case, the respondent has already served and completed her 9-month probation sentence. The Court in Ivan v Republic [2025] KEHC 16973 (KLR), when faced with a similar issue, stated:
“In the instant case, the Appellant faced three Counts of assault causing bodily harm; he was sentenced to 12 months imprisonment on consolidated sentence to all counts on 4/5/2023. Clearly, on 4/5/2024 the Appellant had already served the full sentence and I find that in the premises this appeal is overtaken by events….The sentence has been served and a retrial will serve no purpose.”
12. In this case, the mistakes that led to the quashing of the conviction were attributable to the prosecution. The respondent herein has already served her full sentence, and a retrial would not be appropriate. In the premises, the conviction and sentence are hereby set aside. The appeal is hereby dismissed.
Dated, Signed and Delivered at BUNGOMA this 15 th day of December 2025
R.E. OUGO
JUDGE
In the presence of:
Miss Wakoli - For the Appellant
Mery Otero/Appellant
Mr. Minishi - For the Respondent
Wilkister C/A
HCCRA NO E105 OF 2024 - JUDGMENTHCCRA NO E105 OF 2024 - JUDGMENT HCCRA NO E105 OF 2024 - JUDGMENTHCCRA NO E105 OF 2024 - JUDGMENT 2222
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO E105 OF 2024
REPUBLIC……………………………………………….….APPELLANNT
VERSUS
MERCY OTERO……………………………………………RESPONDENT
(Being an appeal from a sentence meted by Hon. T.M. Olando P.M. in Bungoma Chief Magistrate Court, Criminal Case No. E989 of 2024 was meted out on the 6 th day of August 2024.)
JUDGMENT
1. The respondent was charged and convicted of the following offences:
COUNT I: Making a document without authority contrary to section 357 (a) of the Penal Code.
Particulars of the offence : The respondent, on an unknown date at an unknown place within the Republic of Kenya, with others not before the court, with intent to deceive, and without lawful authority, made a certain document, namely, a Certificate of Registration for Reg No. A09006 dated 23 rd May 2016, in the name of the respondent, purporting it to be a genuine Certificate of Registration from the Kenya Laboratory Technicians and Technologists Board (KMLTTB).
COUNT II: Uttering a false document contrary to section 353 as read with section 349 of the Penal Code.
Particulars: On the 21 st day of June 2024, at Bungoma County Offices within Bungoma County, knowingly and fraudulently uttered a forged Certificate of registration Reg. No A09006 dated 23 rd May 2016 in the respondent’s name to Mr Luka Chemwolo, an auditor of the Kenya Medical Laboratory Technicians and Technologists Board (KMLTTB), purporting it to be a genuine Practice Licence issued by the said KMLTTB .
COUNT III : Making a document without authority contrary to section 357 (a) of the Penal Code
Particulars : On an unknown date at an unknown place within the Republic of Kenya, with others not before the court, with intent to deceive, without lawful authority, made a certain document, namely Practice License for Reg No A09006, valid until December 31 st , 2004, in the name of the respondent, purporting it to be a genuine practice license from the Kenya Medical Laboratory Technicians and Technologists Board (KMLTTB) .
COUNT IV: Uttering a false document contrary to section 353 as read with section 349 of the Penal Code.
Particulars: On the 21 st day of June 2024, at Bungoma County Offices within Bungoma County, knowingly and fraudulently uttered a forged practice license for Reg. No A09006 valid until December 31 st , 2004, in the respondent’s name to Mr Luka Chemwolo, an auditor of the Kenya Medical Laboratory Technicians and Technologists Board (KMLTTB), purporting it to be a genuine Practice Licence issued by the said KMLTTB .
COUNT V: Acting as a medical laboratory technologist in a health institution in Kenya without registration, contrary to section 19 (1) as read with section 19 (2) of the Medical Laboratory Technicians and Technologists Act No 10 of 1999
Particulars : On diverse dates between 1 st May 2024 and 21 st June 2024 at Chwele Sub-County Hospital within Bungoma County, acted as a Medical Laboratory Technologist without registration by the Kenya Medical Laboratory Technicians and Technologists Board (KMLTTB) as required by the Medical Laboratory Technicians and Technologists Act, CAP 253A Laws of Kenya .
2. The respondent pleaded guilty to the charge and was sentenced to nine months’ probation.
3. The appellant, dissatisfied with the sentence meted out on the respondent, has lodged this instant appeal on the following grounds:
1. The learned magistrate erred in law and in fact by sentencing the respondent to serve a non-custodial sentence of nine (9) months for the offence of acting as a medical lab technician contrary to section 19(1) as read with section 19(2) of the Medical Laboratory Technicians and Technologists Act, making a Document without Authority Contrary to Section 357(a) of Penal Code and Uttering a False Document contrary to section 353 of the Penal Code.
2. That the learned magistrate erred by sentencing the accused to probation when the law under which the accused was charged provides for a fine not exceeding one million shillings, or to imprisonment for a term not exceeding five years, or to both for the first count and to imprisonment of seven years for the second count.
3. That the learned magistrate erred in law and in fact by considering a pre-sentence report that was biased in the sense that the report did not take into account the views of the complainant or affected members of the public whose lives were at risk in the hands of unqualified characters.
4. The learned magistrate erred in law and in fact by considering a pre-sentence report that recommended a non-custodial sentence despite the confession by the respondent that she did not have the requisite qualifications to act as a medical lab technician.
5. That the learned magistrate erred in law and in fact by failing to appreciate the fact that the actions of the respondent in practising in a public facility without the requisite qualifications were exposing the lives of patients at risk, and as such failed to take into account the public interest.
6. The learned magistrate erred in law and in fact by failing to appreciate the fact that the actions of the respondent, practising with forged certificates and earning public salaries from the County Government at the expense of qualified individuals who are the majority and without such employment opportunities.
7. The learned magistrate erred in law and in fact by meting out a sentence that was too low and which does not inspire confidence in the criminal justice system in the circumstances, and we urge this court to enhance the sentence .
ANALYSIS AND DETERMINATION
4. The issues before the court are whether the plea was unequivocal and whether the sentence imposed on the respondent should be enhanced.
5. The appellant also argued that the plea was not unequivocal, as the prosecution stated ‘facts as stated’ and then produced 10 documents not described in the proceedings, to which the respondent replied, ‘it is true’. In Victor Naibei Kimati v Republic, the court ordered a retrial upon finding that the plea was improper. The presentence report was positive. It was submitted that the Judiciary Sentencing Guidelines Principles underpinning the sentence process include proportionality, equality, accountability and transparency.The appellant submits that the facts of the offence were not read to her and that the plea was equivocal; therefore, a retrial is need for a retrial.
6. The respondent submitted that the trial court did not err in sentencing the respondent to probation, noting that the objectives of sentencing consist of: deterrence, rehabilitation, accountability for one’s actions, protection of society, retribution, and denouncing the conduct of the offender for the harm done to the victim. Recent progressive presidents in the Kenyan Criminal Justice System are moving away from the continual embrace of the minimum mandatory statutory sentencing provisions to align the statutes with the Constitution.
7. I have carefully reviewed the proceedings before the trial court. The charge was read to the respondent, and the respondent’s response was “It is true.” The prosecution then read the facts as set out in the charge sheet, and the trial court recorded, “That is all.” The court then proceeded to convict the respondent on her own plea of guilty.
8. In Adan V Republic [1973] EA 445, the court stated 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 not possible, then in a language which he can speak and understand.
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 facts. 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 guilty, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. If the accused does not deny the alleged 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, of course, be recorded.”
9. It was not sufficient for the prosecution to state that the facts are as set out in the charge sheet, as the prosecutor is required to state the facts of the alleged offence. This was not done. Therefore, I find that the plea was equivocal. Consequently, the conviction and sentence are set aside.
10. The only question before the court is whether this is therefore a proper case for retrial. In Muiruri –vs- Republic (2003), KLR, 552 and Mwangi –vs- Republic (1983) KLR 522 and Fatehali Maji –vs- Republic (1966) EA, 343 the view expressed was that: -
“Although some factors may be considered, such as illegalities or defects in the original trial, the length of time elapsed since the arrest and arraignment of the appellant; whether mistakes leading to the quashing of the conviction were entirely the prosecution’s making or not; whether on a proper consideration of the admissible or potentially admissible evidence a conviction might result from a retrial; at the end of the day, each case must depend on its own particular facts and circumstances and an order for a retrial should only be made where the interests of justice requires it.”
11. In this case, the respondent has already served and completed her 9-month probation sentence. The Court in Ivan v Republic [2025] KEHC 16973 (KLR), when faced with a similar issue, stated:
“In the instant case, the Appellant faced three Counts of assault causing bodily harm; he was sentenced to 12 months imprisonment on consolidated sentence to all counts on 4/5/2023. Clearly, on 4/5/2024 the Appellant had already served the full sentence and I find that in the premises this appeal is overtaken by events….The sentence has been served and a retrial will serve no purpose.”
12. In this case, the mistakes that led to the quashing of the conviction were attributable to the prosecution. The respondent herein has already served her full sentence, and a retrial would not be appropriate. In the premises, the conviction and sentence are hereby set aside. The appeal is hereby dismissed.
Dated, Signed and Delivered at BUNGOMA this 15 th day of December 2025
R.E. OUGO
JUDGE
In the presence of:
Miss Wakoli - For the Appellant
Mery Otero/Appellant
Mr. Minishi - For the Respondent
Wilkister C/A
HCCRA NO E105 OF 2024 - JUDGMENTHCCRA NO E105 OF 2024 - JUDGMENT HCCRA NO E105 OF 2024 - JUDGMENTHCCRA NO E105 OF 2024 - JUDGMENT 2222