REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO. E119 OF 2024
RONALD WAMALWA ………..........…….………............ APPELLANT
- VERSUS -
REPUBLIC ………………..………………………………….. RESPONDENT
(Being an appeal from the judgment and conviction of Hon. J.O. Manasses RM delivered on the 25/3/2024 and sentence meted out on the 9/4/2024 )
JUDGMENT
1. The appellant was charged with the offence of defilement contrary to section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on diverse dates between 4 th – 9 th March 2024, at Sasur sub-location, Sasur location in Cheptais sub county within Bungoma County, the appellant intentionally caused his penis to penetrate the vagina of C.C. a child aged 13 years. The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006 .
2. The appellant pleaded not guilty and was scheduled for pre-trial directions on 25/3/2024. When the matter came up for pre-trial, the appellant sought to take plea afresh. The trial court issued a cautionary statement to the appellant, but he insisted that he wanted to plead guilty.
3. Consequently, a fresh plea was taken in Kiswahili where the appellant admitted “NI UKWELI”. The trial court thus entered a plea of guilty, after which the facts of the charge were read out again and the appellant again responded, “NI UKWELI”. The trial court subsequently proceeded to convict the appellant based on his own plea of guilty.
4. Prior to sentencing, the trial court granted the appellant an opportunity to make representations in mitigation, but the appellant stated that he had nothing to mitigate. After considering the pre-sentencing report, the court sentenced the appellant to 15 years’ imprisonment.
5. Being aggrieved by the trial court's decision, the appellant filed his appeal on 16/9/2024, in which he raised the following grounds;
a. That the Hon. Learned Trial Magistrate erred in law and fact when he convicted the appellant on a plea that was not unequivocal hence occasioning a miscarriage of justice.
b. That the learned magistrate erred in law and fact when he failed to indicate the language the appellant understood during the proceedings and sentence hence occasioning a miscarriage of justice.
c. That the Hon. Magistrate erred in law and fact when he failed to promptly inform the appellant of his right to be assigned an advocate by the state and at state expense taking into account the serious charge that faced the appellant before him in line with Article 50 (2) (h) of the Constitution hence occasioning a miscarriage of justice.
d. That the sentence meted out was excessive, harsh and unlawful.
6. I have reviewed the pleadings before me, along with the submissions from both parties. The first issue to consider is whether the appellant can contest his conviction after pleading guilty to the charge.
7. Section 348 of the Criminal Procedure Code provides as follows: -
No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.
8. The Court of Appeal in Odhiambo Olel v Republic (1989) eKLR , stated as follows regarding section 348 of the Criminal Procedure Code : -
“…. where a person has pleaded guilty in a clear and unequivocal manner, he cannot on appeal challenge a conviction based on such a plea. In fact, the section does not allow appeals to be made in such cases.”
9. However, In Wandete David Munyoki v Republic [2015] eKLR the Court of Appeal stated as follows regarding a plea of guilty;
“It has long been settled that Section 348 of the Criminal Procedure Code which provides that no appeal is allowed in a conviction arising from a plea of guilty, except to the extent and legality of the sentence, is not an absolute bar to challenging such a conviction on any other ground. Indeed, in Ndede v R [1991] KLR 567, this Court held that the court is not bound to accept the accused person’s admission of the truth of the charge and conviction as there may be an unusual circumstance such as injury to the accused person or the accused person may be confused or there has been inordinate delay in bringing him to court from the date of arrest. The list of circumstances and examples that may lead the first appellate court to consider the appeal on merit even when the conviction was on the accused person’s own plea of guilty, are not closed.
10. In Davies Maina v R Nyeri HCCR Appeal No. 49 Of 2017 the court said the following:
“Although the provisions of section 348 of the CPC appear to framed in mandatory terms the Court of Appeal has variously held otherwise. This is in recognition of the fact that our criminal justice system is open to abuse by those who wield power despite the rights guaranteed for an accused person. Secondly, it is not a friendly system, has not yet to be fully demystified, and attain the requisite levels of professionalism. Persons of all walks of life are intimidated by it. Some end up pleading guilty out of fear and confusion, and even ignorance of processes.”
11. In the present case, the appellant challenged his conviction on the grounds that he did not enter an equivocal plea because he did not understand the language used during the proceedings and sentence.
12. Article 50 (2)(b) of the Constitution states that: -
“(2)Every accused person has the right to a fair trial, which includes the right- (b) to be informed of the charge, with sufficient detail to answer it.”
13. Section 207 of the Criminal Procedure Code states as follows:
“207 (1) The substance of the charge shall be stated to the accused person by the Court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to plea agreement;
(2) If the accused person admits the truth of the charge otherwise than by plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary;
Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded.”
14. The superior courts have occasioned to clarify the procedure and manner in which a guilty plea should be recorded by the trial court. In the case of Adan v R [1973] EA 445, the Court of Appeal reiterated the proper way to take a plea. It held 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 take the facts and the accused should be given an opportunity to change or explain the facts or to add to any relevant facts.
(iv)If the accused does not agree to the facts or raises any question of his guilt in his reply it must be recorded and change of plea entered.
(v)If there is no change of plea, a conviction should be recorded as well as a statement of facts relevant to sentence and the accused reply.”
15. I have considered the record before the trial court; the appellant initially entered a plea of not guilty by responding “SIO KWELI”. When the appellant sought to take plea afresh, the court took the same in Kiswahili, and the appellant subsequently entered a plea of guilty stating “NI KWELI”, both before and after the facts were read out to him.
16. It is evident that the appellant understood the charges and proceedings brought against him. Accordingly, the appellant’s plea was unequivocal.
17. Additionally, the appellant has failed to demonstrate that his admission of the truth of the charge and conviction was influenced by any circumstance, thereby prejudicing him.
18. Consequently, the appellant by virtue of section 348 of the Criminal Procedure Code is barred from challenging the conviction, except that he can challenge the extent and legality of the sentence imposed by the trial court. However, in this instance, the appellant abandoned his appeal on sentence.
19. The conclusion is that I find this appeal without merit and dismiss it.
Dated , signed and delivered at Bungoma this 18 th Day of March 2026.
R. OUGO
JUDGE
In the presence of:
Ronald Wamalwa /Appellant
Miss Matere - For the Respondent
Wilkister - C/A
hccra no.e119 of 2024 2
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO. E119 OF 2024
RONALD WAMALWA ………..........…….………............ APPELLANT
- VERSUS -
REPUBLIC ………………..………………………………….. RESPONDENT
(Being an appeal from the judgment and conviction of Hon. J.O. Manasses RM delivered on the 25/3/2024 and sentence meted out on the 9/4/2024 )
JUDGMENT
1. The appellant was charged with the offence of defilement contrary to section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on diverse dates between 4 th – 9 th March 2024, at Sasur sub-location, Sasur location in Cheptais sub county within Bungoma County, the appellant intentionally caused his penis to penetrate the vagina of C.C. a child aged 13 years. The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006 .
2. The appellant pleaded not guilty and was scheduled for pre-trial directions on 25/3/2024. When the matter came up for pre-trial, the appellant sought to take plea afresh. The trial court issued a cautionary statement to the appellant, but he insisted that he wanted to plead guilty.
3. Consequently, a fresh plea was taken in Kiswahili where the appellant admitted “NI UKWELI”. The trial court thus entered a plea of guilty, after which the facts of the charge were read out again and the appellant again responded, “NI UKWELI”. The trial court subsequently proceeded to convict the appellant based on his own plea of guilty.
4. Prior to sentencing, the trial court granted the appellant an opportunity to make representations in mitigation, but the appellant stated that he had nothing to mitigate. After considering the pre-sentencing report, the court sentenced the appellant to 15 years’ imprisonment.
5. Being aggrieved by the trial court's decision, the appellant filed his appeal on 16/9/2024, in which he raised the following grounds;
a. That the Hon. Learned Trial Magistrate erred in law and fact when he convicted the appellant on a plea that was not unequivocal hence occasioning a miscarriage of justice.
b. That the learned magistrate erred in law and fact when he failed to indicate the language the appellant understood during the proceedings and sentence hence occasioning a miscarriage of justice.
c. That the Hon. Magistrate erred in law and fact when he failed to promptly inform the appellant of his right to be assigned an advocate by the state and at state expense taking into account the serious charge that faced the appellant before him in line with Article 50 (2) (h) of the Constitution hence occasioning a miscarriage of justice.
d. That the sentence meted out was excessive, harsh and unlawful.
6. I have reviewed the pleadings before me, along with the submissions from both parties. The first issue to consider is whether the appellant can contest his conviction after pleading guilty to the charge.
7. Section 348 of the Criminal Procedure Code provides as follows: -
No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.
8. The Court of Appeal in Odhiambo Olel v Republic (1989) eKLR , stated as follows regarding section 348 of the Criminal Procedure Code : -
“…. where a person has pleaded guilty in a clear and unequivocal manner, he cannot on appeal challenge a conviction based on such a plea. In fact, the section does not allow appeals to be made in such cases.”
9. However, In Wandete David Munyoki v Republic [2015] eKLR the Court of Appeal stated as follows regarding a plea of guilty;
“It has long been settled that Section 348 of the Criminal Procedure Code which provides that no appeal is allowed in a conviction arising from a plea of guilty, except to the extent and legality of the sentence, is not an absolute bar to challenging such a conviction on any other ground. Indeed, in Ndede v R [1991] KLR 567, this Court held that the court is not bound to accept the accused person’s admission of the truth of the charge and conviction as there may be an unusual circumstance such as injury to the accused person or the accused person may be confused or there has been inordinate delay in bringing him to court from the date of arrest. The list of circumstances and examples that may lead the first appellate court to consider the appeal on merit even when the conviction was on the accused person’s own plea of guilty, are not closed.
10. In Davies Maina v R Nyeri HCCR Appeal No. 49 Of 2017 the court said the following:
“Although the provisions of section 348 of the CPC appear to framed in mandatory terms the Court of Appeal has variously held otherwise. This is in recognition of the fact that our criminal justice system is open to abuse by those who wield power despite the rights guaranteed for an accused person. Secondly, it is not a friendly system, has not yet to be fully demystified, and attain the requisite levels of professionalism. Persons of all walks of life are intimidated by it. Some end up pleading guilty out of fear and confusion, and even ignorance of processes.”
11. In the present case, the appellant challenged his conviction on the grounds that he did not enter an equivocal plea because he did not understand the language used during the proceedings and sentence.
12. Article 50 (2)(b) of the Constitution states that: -
“(2)Every accused person has the right to a fair trial, which includes the right- (b) to be informed of the charge, with sufficient detail to answer it.”
13. Section 207 of the Criminal Procedure Code states as follows:
“207 (1) The substance of the charge shall be stated to the accused person by the Court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to plea agreement;
(2) If the accused person admits the truth of the charge otherwise than by plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary;
Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded.”
14. The superior courts have occasioned to clarify the procedure and manner in which a guilty plea should be recorded by the trial court. In the case of Adan v R [1973] EA 445, the Court of Appeal reiterated the proper way to take a plea. It held 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 take the facts and the accused should be given an opportunity to change or explain the facts or to add to any relevant facts.
(iv)If the accused does not agree to the facts or raises any question of his guilt in his reply it must be recorded and change of plea entered.
(v)If there is no change of plea, a conviction should be recorded as well as a statement of facts relevant to sentence and the accused reply.”
15. I have considered the record before the trial court; the appellant initially entered a plea of not guilty by responding “SIO KWELI”. When the appellant sought to take plea afresh, the court took the same in Kiswahili, and the appellant subsequently entered a plea of guilty stating “NI KWELI”, both before and after the facts were read out to him.
16. It is evident that the appellant understood the charges and proceedings brought against him. Accordingly, the appellant’s plea was unequivocal.
17. Additionally, the appellant has failed to demonstrate that his admission of the truth of the charge and conviction was influenced by any circumstance, thereby prejudicing him.
18. Consequently, the appellant by virtue of section 348 of the Criminal Procedure Code is barred from challenging the conviction, except that he can challenge the extent and legality of the sentence imposed by the trial court. However, in this instance, the appellant abandoned his appeal on sentence.
19. The conclusion is that I find this appeal without merit and dismiss it.
Dated , signed and delivered at Bungoma this 18 th Day of March 2026.
R. OUGO
JUDGE
In the presence of:
Ronald Wamalwa /Appellant
Miss Matere - For the Respondent
Wilkister - C/A
hccra no.e119 of 2024 2