1. Simon Otieno Odoyo, the appellant herein, was convicted after pleading guilty to the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence are that on diverse dates between the 16th day of July 2024 and the 27th day of July 2024 at Oruba Complex village, Suna West sub-County within Migori County, intentionally and unlawfully caused his penis to penetrate the vagina of L.A.O., a child aged 13 years.
3. The appellant was sentenced to twenty years’ imprisonment. He was aggrieved and filed this appeal against both the conviction and the sentence. He raised grounds of appeal as follows:
a) The court proceedings of 2nd September 2024 are incurably defective in that they were based on an equivocal plea which the Hon. Senior Principal Magistrate mistook for a plea of guilty.
b) The proceedings are fatally defective on account of being based on particulars of offence that did not disclose the offence charged.
c) That the appellant was denied the right to have the proceedings in the trial court interpreted by an official and non-partisan interpreter into a language he understood.
d) That the appellant was denied the right to have the salient facts of the case narrated to him and to be given an opportunity to admit, deny or qualify the same.
e) The appellant was not given a chance in the trial court to mitigate before sentence was passed on him.
f) That the sentence is excessive and harsh.
4. The state opposed the appeal through learned counsel, Elizabeth Kogos. She argued that the plea was unequivocal and that the sentence imposed was lawful.
5. This is a first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court afresh. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.
6. In the leading case of Joseph Marangu Njau v Republic [2015] eKLR, the Court of Appeal stated:
Whereas all the perils a guilty pleader embraces may not much matter in petty offences or in mere infractions which do not present much risk to life or liberty, much is at stake in the offences that attract more penal severe consequences. In the case before us, the balance of the appellant’s natural life stood to be spent behind bars upon conviction.
Cognizant of the ever-present dangers of misjustice [sic] in guilty pleas, the courts have been vigilant to act upon and to uphold them only when they are clear, express, unambiguous and unequivocal. When a plea of guilty is challenged as not having been entered unequivocally, it becomes a matter of law that permits the superior courts to entertain appeals notwithstanding Section 348 of the CPC aforesaid. The predecessor of this Court considered and authoritatively laid down the manner in which pleas of guilty should be recorded and the steps which should be followed, in the decades-old case of Adan vs Republic [1973] EA 445, 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 raise 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.”
In the instant case, I will endeavour to establish whether the plea complied with the procedure described in Adan (supra).
7. On 30 July 2024, the appellant was taken to court for a plea. The charge was read to him, although the language of the plea was not indicated. When he was called upon to respond, he said it was true. The facts were read to him the following day. This time, the record clearly indicates that the translation was provided to him in Dholuo by Otieno, the court assistant. He confirmed that the facts were true.
8. The facts that were read to him and that he confirmed correctly supported the charge of defilement. The medical treatment notes indicate the complainant was aged 13 years. The facts, therefore, support the charge.
9. I also find that the plea by the appellant was unequivocal.
10. 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.
11. Having confirmed that the plea was properly taken, I will now seek to verify the legality of the sentence. Remember, an appellate court will interfere with a trial court's sentence only if there are substantial reasons to justify a different ruling. These conditions were clearly demonstrated in the case of Nillson vs Republic [1970] E.A. 599, as outlined below:
The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in JAMES Vs. REX (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R Vs. SHERSHEWSITY (1912) C.CA 28 T.LR 364.
12. Contrary to the contention of the appellant that he was not given a chance to mitigate, the record states otherwise. In his mitigation, the appellant pleaded for pardon for what he had done.
13. Section 8 (3) of the Sexual Offences Act provides as follows:
A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
14. In this case, the minor was thirteen years old. The minimum sentence required by law is mandatory; any deviation would be unlawful. Therefore, I have no grounds to alter the sentence. The appeal is accordingly dismissed.
Delivered and signed at Migori, this 23rd day of February 2026
2. The particulars of the offence are that on diverse dates between the 16th day of July 2024 and the 27th day of July 2024 at Oruba Complex village, Suna West sub-County within Migori County, intentionally and unlawfully caused his penis to penetrate the vagina of L.A.O., a child aged 13 years.
3. The appellant was sentenced to twenty years’ imprisonment. He was aggrieved and filed this appeal against both the conviction and the sentence. He raised grounds of appeal as follows:
a) The court proceedings of 2nd September 2024 are incurably defective in that they were based on an equivocal plea which the Hon. Senior Principal Magistrate mistook for a plea of guilty.
b) The proceedings are fatally defective on account of being based on particulars of offence that did not disclose the offence charged.
c) That the appellant was denied the right to have the proceedings in the trial court interpreted by an official and non-partisan interpreter into a language he understood.
d) That the appellant was denied the right to have the salient facts of the case narrated to him and to be given an opportunity to admit, deny or qualify the same.
e) The appellant was not given a chance in the trial court to mitigate before sentence was passed on him.
f) That the sentence is excessive and harsh.
4. The state opposed the appeal through learned counsel, Elizabeth Kogos. She argued that the plea was unequivocal and that the sentence imposed was lawful.
5. This is a first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court afresh. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.
6. In the leading case of Joseph Marangu Njau v Republic [2015] eKLR, the Court of Appeal stated:
Whereas all the perils a guilty pleader embraces may not much matter in petty offences or in mere infractions which do not present much risk to life or liberty, much is at stake in the offences that attract more penal severe consequences. In the case before us, the balance of the appellant’s natural life stood to be spent behind bars upon conviction.
Cognizant of the ever-present dangers of misjustice [sic] in guilty pleas, the courts have been vigilant to act upon and to uphold them only when they are clear, express, unambiguous and unequivocal. When a plea of guilty is challenged as not having been entered unequivocally, it becomes a matter of law that permits the superior courts to entertain appeals notwithstanding Section 348 of the CPC aforesaid. The predecessor of this Court considered and authoritatively laid down the manner in which pleas of guilty should be recorded and the steps which should be followed, in the decades-old case of Adan vs Republic [1973] EA 445, 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 raise 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.”
In the instant case, I will endeavour to establish whether the plea complied with the procedure described in Adan (supra).
7. On 30 July 2024, the appellant was taken to court for a plea. The charge was read to him, although the language of the plea was not indicated. When he was called upon to respond, he said it was true. The facts were read to him the following day. This time, the record clearly indicates that the translation was provided to him in Dholuo by Otieno, the court assistant. He confirmed that the facts were true.
8. The facts that were read to him and that he confirmed correctly supported the charge of defilement. The medical treatment notes indicate the complainant was aged 13 years. The facts, therefore, support the charge.
9. I also find that the plea by the appellant was unequivocal.
10. 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.
11. Having confirmed that the plea was properly taken, I will now seek to verify the legality of the sentence. Remember, an appellate court will interfere with a trial court's sentence only if there are substantial reasons to justify a different ruling. These conditions were clearly demonstrated in the case of Nillson vs Republic [1970] E.A. 599, as outlined below:
The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in JAMES Vs. REX (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R Vs. SHERSHEWSITY (1912) C.CA 28 T.LR 364.
12. Contrary to the contention of the appellant that he was not given a chance to mitigate, the record states otherwise. In his mitigation, the appellant pleaded for pardon for what he had done.
13. Section 8 (3) of the Sexual Offences Act provides as follows:
A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
14. In this case, the minor was thirteen years old. The minimum sentence required by law is mandatory; any deviation would be unlawful. Therefore, I have no grounds to alter the sentence. The appeal is accordingly dismissed.
Delivered and signed at Migori, this 23rd day of February 2026