(Being an appeal from the Judgment of Hon. D.N. Kioko (RM) at Kangundo Court Case No E470 of 2023 delivered on 5th June 2024)
A. Introduction
1. The appellant being aggrieved by the decision of the trial court that convicted him for the offence of house breaking and stealing contrary to Section 304 of the Penal Code has lodged this appeal. He seeks that his conviction be quashed and the 5 years imprisonment sentence for Count 1 and 2 years imprisonment for Count 2 be set aside.
2. The appeal is premised on the grounds that the trial court erred in law and fact by failing to find that his conviction was unconstitutional hence prejudicial; failing to apply criminal practice and procedure correctly, thereby occasioning a miscarriage of justice; disregarded the law on the safeguards of equivocal plea contrary to Section 207 of the Criminal procedure Code therefore resulting to an incurable ambiguity; disregarded the defence submission and proceeding on a charge sheet that was grossly defective, contrary to Sections 89 (5), 134, 137 & 214 (1) of the Criminal Procedure Code; imposing a sentence of seven years that was disproportionate, inconsistent with the principles of punishment, and contrary to recent developments in sentencing.
B. Background
3. Before the trial court, the appellant was charged with count 1 the offence of house breaking contrary to section 304 (1) of the Penal Code. The particulars of the offence were that on 27th April 2024 at Mukunike Sub-location, Kawethei location in Kangundo Sub-county within Machakos county he broke and entered the building house of Japhet Kioko Mutuku with intent to commit a felony namely theft. On Count II, the appellant was charged with the offence of stealing contrary to Section 268 as read with Section 275 of the Penal Code. The particulars of the offence were that on 27th April 2024 at Mukunike Sub-location, Kawethei location in Kangundo Sub-county within Machakos county stole 8 long trouser (jeans), 4 t-shirts, 2 speakers, 3 pairs of shoes, home bank tin containing Kshs 7, 000/= all valued at Kshs 16, 800/=, the property of Japhet Kioko Mutuku. In the alternative, he was charged with the offence of handling stolen goods contrary to section 322 (1) (2) of the Penal Code. The particulars of the offence were that on 9th May 2024 at Mukunike Sub-location, Kawethei location in Kangundo Sub-county within Machakos county otherwise than in the course of stealing dishonesty, retained two speakers and one pair of yellow shows knowing or having reason to believe them to be stolen goods.
4. When the facts were read over to the appellant, he pleaded guilty. The court directed that a pre-sentence report be filed before sentencing. The report dated 5th June 2024 revealed that he was a repeat offender with prior convictions for stealing. The trial court noted that the appellant is a menace to society and should not be released to the society. The court proceeded to sentenced him to 5 years imprisonmentor pay a fine of kshs 200,000/- for Count 1 and two years’ imprisonment or a fine of kshs 100,000/= for Count 2. The sentence was to run consecutively.
C. The Appeal
5. The appeal is as set out in the earlier paragraphs of this judgment. The appellant seeks that his conviction be quashed and the 7 years imprisonment sentence set aside. The appellant seeks to rely on his written submissions dated 25th November 2025 and Reply to submissions dated 8th December 2025 while the respondent sought to rely on its submissions dated 26th November 2025. The parties’ submissions are as follows:
a) Appellant’s Submissions
6. The Appellant challenges both conviction and sentence and frames four substantive issues for determination.
7. On the issue of whether the instant matter was subjected to a prejudicial ambiguity of plea and lack of proper warning, the Appellant submits that his plea of guilty was not unequivocal. He contends that the trial court failed to adhere to the mandatory plea-taking procedure as set out in Adan v. Republic [1973] EA 445 and the case of Paul Matungu versus Republic [2021] eKLR. In particular, he argues that the record does not demonstrate that the charge and all its essential ingredients were read and explained to him in a language he understood, nor that he was informed of the consequences of pleading guilty. He further submits that the court did not confirm his understanding of the elements of the offences nor accord him a proper opportunity to dispute or explain the prosecution facts before conviction was entered. Being unrepresented at the time, he contends that the trial court was under a heightened duty to exercise caution and ensure that the plea was clear, informed, and voluntary. He therefore maintains that the plea was equivocal and that the resulting conviction is unsafe.
8. On the second issue he submits that the Charge sheet is grossly defective, incurable under Section 382 of the Criminal Procedure Code, and prejudicial in the prevailing circumstances of the case, the Appellant argues that the charge sheet was fundamentally flawed. He submits that he was charged under Section 304(1) of the Penal Code, which provides for housebreaking committed during the day, yet the particulars alleged that the offence occurred at night. According to him, this inconsistency between the statutory provision cited and the particulars of the offence rendered the charge defective. He further contends that the exact time of the alleged offence was not clearly established, thereby prejudicing his ability to respond effectively to the accusation. In his view, the defect was substantive rather than technical and could not be cured under Section 382 of the Criminal Procedure Code. He urges the Court to find that the defective charge vitiated the proceedings and warrants quashing of the conviction.
9. The third ground, whether the evidence admitted and relied upon was illegal for lack of constitutional and legal safeguards, the Appellant submits that the exhibits were improperly obtained and admitted. He contends that the items allegedly recovered were not properly marked for identification, that there was no demonstrated chain of custody, and that no recovery forms or inventory documentation were produced. While relying on the case of Justus Musau Wambua & Another versus Republic, the appellant argues that the search and seizure were conducted without proper legal authority thereby infringing his constitutional rights. He maintains that the admission of such evidence violated Article 50 of the Constitution and undermine the integrity of the trial, rendering the conviction unsafe.
10. On the fourth issue, whether an appellate court can rectify errors in the charges and convict on amended charges without giving an opportunity to the appellant to plead to the amended charges under Section 214 of the Criminal Procedure Code. The Appellant challenges the sentence imposed as disproportionate and excessive. He submits that the cumulative sentence of five years on the first count and two years on the second count, or the alternative fines imposed, was harsh given that the value of the stolen ox plough was Kshs. 18,000/=. He argues that the trial court failed to consider mitigating factors including his plea of guilty, the relatively low value of the property and the possibility of rehabilitation. He further contends that the court did not properly apply the principle of totality in structuring the sentences and failed to consider non-custodial alternatives. In addition, he invokes Article 50(2)(p) of the Constitution, submitting that he was entitled to benefit from the least severe punishment applicable and that the sentence imposed was inconsistent with proportionality and fairness in sentencing.
11. In light of the foregoing, the Appellant prays that this Court quashes the conviction on account of an equivocal plea and defective charges, sets aside the sentence imposed, and orders his release. In the alternative, he seeks a reduction of the sentence or substitution with a non-custodial sentence, urging the Court not to order a retrial given the period already served.
b) Respondent’s Submissions
12. The Respondent opposes the appeal on conviction but partially concedes on sentence.
13. The Respondent submits that the Appellant was properly charged with the offences of housebreaking contrary to Section 304(1) of the Penal Code and stealing contrary to Section 268 as read with Section 275 of the Penal Code. It is urged that the Appellant unequivocally pleaded guilty to both counts and was thereafter sentenced to a fine of Kshs. 200,000 or five years’ imprisonment in default on the first count, and a fine of Kshs. 100,000 or two years’ imprisonment in default on the second count to run consecutively.
14. On the issue of whether the plea was equivocal, the Respondent contends that the record of the trial court proceedings clearly demonstrates that the Appellant understood the charges and the proceedings in their entirety. It is submitted that the charges were read out to him and that he followed the proceedings without any indication of confusion or misunderstanding. According to the Respondent, there is nothing on record to suggest that the plea was ambiguous or improperly taken. The Respondent further argues that sentencing was not conducted immediately after the plea was entered, thereby affording the Appellant sufficient time to reflect on his decision to plead guilty. In the circumstances, the Respondent maintains that the plea was unequivocal.
15. On the issue of sentence, the Respondent submits that sentencing is a matter within the discretion of the trial court. However, it is acknowledged that the offences in question arose from the same transaction and were committed against the same complainant. The Respondent notes that the general principle is that where multiple offences arise from a single transaction, the sentences should ordinarily run concurrently unless exceptional circumstances exist. The Respondent placed their reliance on the decision of the Court of Appeal in Peter Mbugua Kabui v. R [2016] KLR where the court reiterated that sentences for offences committed in the same transaction should run concurrently. The Respondent also refers to paragraph 7.13 of the Sentencing Policy Guidelines, which provides that where offences emanate from a single transaction sentences should run concurrently while consecutive sentences are appropriate where offences arise from multiple transactions or involve multiple victims.
16. In conclusion, while maintaining that the conviction was proper and the plea unequivocal, the Respondent concedes the appeal to the limited extent that the sentences ought to have been ordered to run concurrently rather than consecutively. It is therefore urged that the appeal be dismissed on conviction but allowed only to the extent of directing that the sentences run concurrently.
Analysis and determination
17. This being a first appeal, the duty of the court is to analyze and re-evaluate afresh the evidence adduced before the lower court and drawn its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The Court of Appeal in Okeno vs Republic [1972] EA 32 set out the duty of a first appellate court as follows:
“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
18. The issues identified for determination are:
a. Whether the plea was equivocal
b. Whether the charge sheet was defective and prejudicial to the Appellant.
c. Whether the sentence imposed on the Appellant was harsh and whether it ought to have run concurrently
Whether the plea was equivocal
19. The Appellant contends that the plea was not unequivocal arguing that the trial court failed to comply with the safeguards set out in Adan v Republic (Supra). He submits that the record does not demonstrate that the essential ingredients of the offences were explained to him in a language he understood nor that he was cautioned as to the consequences of pleading guilty. He further asserts that, being unrepresented, the trial court ought to have exercised heightened caution.
20. The Respondent on the other hand, maintains that the plea was properly taken. The charges were read out, the Appellant responded clearly and the facts were narrated and admitted. Further, the trial court deferred sentencing pending a pre-sentence report which afforded the Appellant time to reflect.
21. The manner of taking pleas was explained in the case of Adan v Republic (1973) EA 445 where the Court of Appeal laid down the steps which should be followed in taking pleas 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.”
22. Upon re-evaluating the record, the plea was taken in English, Kiswahili and Kikamba, languages which the Appellant understands and does not dispute as being conversant with. The court record indicates that on 13th May 2024 the two counts were read out to the Appellant and he replied to each of the counts that the charges were true. The matter was then adjourned to 20th May 2024 when the facts of the case were then read out to the Appellant. The Appellant was then asked whether he admitted the facts as read out and he answered in the affirmative. He was thereafter convicted on his own plea of guilty.
23. In my view the facts as set out by the prosecution were sufficiently detailed and captured all the material ingredients of the offences. They were adequate to enable the Appellant to understand the charges he was facing. There is no indication on the record that he raised any protest, qualification or explanation inconsistent with guilt. The procedure followed substantially mirrors the steps set out in Adan v Republic (Supra), which are reading and explaining the charge, recording the plea, outlining the facts and confirming the accused’s admission before conviction.
24. While the Appellant argues that the record does not expressly show that each ingredient was broken down or that a warning was administered, the law requires substantial compliance ensuring that the plea is clear, voluntary and informed. In the absence of any ambiguity on record or any indication of misunderstanding, the plea cannot be said to have been equivocal. Accordingly, the conviction founded on that plea is safe.
Whether the charge sheet was defective and prejudicial to the Appellant
25. The Appellant argues that there was inconsistency between the section cited and the particulars relating to the timing of the offence, rendering the charge incurably defective and prejudicial. The Respondent does not directly concede this issue but maintains that the conviction was proper.
26. A charge is defective if it fails to disclose an offence known in law or if it is so framed as to prejudice the accused in understanding the case he is to meet. The test is whether the defect occasioned a miscarriage of justice. From the record, the charge clearly stated the offence of house breaking contrary to section 304(1) of the Penal Code and set out detailed particulars including the date, place, complainant, and intent. The second count similarly particularized the items allegedly stolen and their value. Even assuming there was any inconsistency in the description of time, the Appellant pleaded guilty to the charge as framed and admitted the factual narrative supporting it. No objection was raised at the trial stage. Under Section 382 of the Criminal Procedure Code, minor defects that do not occasion prejudice are curable. There is nothing to demonstrate that the Appellant was misled as to the nature of the accusation. The charge sheet therefore cannot be said to have been fatally defective.
Whether the sentence imposed on the Appellant was harsh and whether it ought to have run concurrently
27. The appellant contends that the sentence imposed was disproportionate, failed to consider mitigation and did not adhere to the principle of totality. He also invokes constitutional proportionality in sentencing. The Respondent maintains that sentencing lies within the discretion of the trial court but concedes that the offences arose from a single transaction and were committed against one complainant. The Respondent relied on the decision in Peter Mbugua Kabui v Republic (Supra) where the Court of Appeal reiterated that sentences for offences committed in the same transaction should ordinarily run concurrently.
28. From the record, both counts stemmed from the same incident, on the same date against the same complainant. There is no indication of separate or distinct transactions. The general principle is that where offences arise out of a single transaction, concurrent sentences are appropriate unless there are exceptional circumstances. While the trial court was entitled to consider that the Appellant was a repeat offender and to impose a deterrent sentence, the structuring of the sentence must still comply with established sentencing principles. In the absence of exceptional circumstances warranting consecutive terms, the sentences ought to have run concurrently.
29. As to the length of the custodial terms or the fines imposed, they fall within the statutory limits prescribed by the Penal Code. There is no basis to conclude that the trial court acted on a wrong principle or overlooked material factors in determining the sentence. The only error discernible relates to the manner in which the sentences were ordered to run.
30. This appeal therefore partly succeeds. The conviction is upheld, but the sentences shall run concurrently. This judgment shall also apply to Machakos High Court Misc Criminal Application No E072 of 2024 Simon Kitwa Mutiso.
Orders accordingly.
Dated, Signed and Delivered at Machakos this 6th day of March 2026
A. Introduction
1. The appellant being aggrieved by the decision of the trial court that convicted him for the offence of house breaking and stealing contrary to Section 304 of the Penal Code has lodged this appeal. He seeks that his conviction be quashed and the 5 years imprisonment sentence for Count 1 and 2 years imprisonment for Count 2 be set aside.
2. The appeal is premised on the grounds that the trial court erred in law and fact by failing to find that his conviction was unconstitutional hence prejudicial; failing to apply criminal practice and procedure correctly, thereby occasioning a miscarriage of justice; disregarded the law on the safeguards of equivocal plea contrary to Section 207 of the Criminal procedure Code therefore resulting to an incurable ambiguity; disregarded the defence submission and proceeding on a charge sheet that was grossly defective, contrary to Sections 89 (5), 134, 137 & 214 (1) of the Criminal Procedure Code; imposing a sentence of seven years that was disproportionate, inconsistent with the principles of punishment, and contrary to recent developments in sentencing.
B. Background
3. Before the trial court, the appellant was charged with count 1 the offence of house breaking contrary to section 304 (1) of the Penal Code. The particulars of the offence were that on 27th April 2024 at Mukunike Sub-location, Kawethei location in Kangundo Sub-county within Machakos county he broke and entered the building house of Japhet Kioko Mutuku with intent to commit a felony namely theft. On Count II, the appellant was charged with the offence of stealing contrary to Section 268 as read with Section 275 of the Penal Code. The particulars of the offence were that on 27th April 2024 at Mukunike Sub-location, Kawethei location in Kangundo Sub-county within Machakos county stole 8 long trouser (jeans), 4 t-shirts, 2 speakers, 3 pairs of shoes, home bank tin containing Kshs 7, 000/= all valued at Kshs 16, 800/=, the property of Japhet Kioko Mutuku. In the alternative, he was charged with the offence of handling stolen goods contrary to section 322 (1) (2) of the Penal Code. The particulars of the offence were that on 9th May 2024 at Mukunike Sub-location, Kawethei location in Kangundo Sub-county within Machakos county otherwise than in the course of stealing dishonesty, retained two speakers and one pair of yellow shows knowing or having reason to believe them to be stolen goods.
4. When the facts were read over to the appellant, he pleaded guilty. The court directed that a pre-sentence report be filed before sentencing. The report dated 5th June 2024 revealed that he was a repeat offender with prior convictions for stealing. The trial court noted that the appellant is a menace to society and should not be released to the society. The court proceeded to sentenced him to 5 years imprisonmentor pay a fine of kshs 200,000/- for Count 1 and two years’ imprisonment or a fine of kshs 100,000/= for Count 2. The sentence was to run consecutively.
C. The Appeal
5. The appeal is as set out in the earlier paragraphs of this judgment. The appellant seeks that his conviction be quashed and the 7 years imprisonment sentence set aside. The appellant seeks to rely on his written submissions dated 25th November 2025 and Reply to submissions dated 8th December 2025 while the respondent sought to rely on its submissions dated 26th November 2025. The parties’ submissions are as follows:
a) Appellant’s Submissions
6. The Appellant challenges both conviction and sentence and frames four substantive issues for determination.
7. On the issue of whether the instant matter was subjected to a prejudicial ambiguity of plea and lack of proper warning, the Appellant submits that his plea of guilty was not unequivocal. He contends that the trial court failed to adhere to the mandatory plea-taking procedure as set out in Adan v. Republic [1973] EA 445 and the case of Paul Matungu versus Republic [2021] eKLR. In particular, he argues that the record does not demonstrate that the charge and all its essential ingredients were read and explained to him in a language he understood, nor that he was informed of the consequences of pleading guilty. He further submits that the court did not confirm his understanding of the elements of the offences nor accord him a proper opportunity to dispute or explain the prosecution facts before conviction was entered. Being unrepresented at the time, he contends that the trial court was under a heightened duty to exercise caution and ensure that the plea was clear, informed, and voluntary. He therefore maintains that the plea was equivocal and that the resulting conviction is unsafe.
8. On the second issue he submits that the Charge sheet is grossly defective, incurable under Section 382 of the Criminal Procedure Code, and prejudicial in the prevailing circumstances of the case, the Appellant argues that the charge sheet was fundamentally flawed. He submits that he was charged under Section 304(1) of the Penal Code, which provides for housebreaking committed during the day, yet the particulars alleged that the offence occurred at night. According to him, this inconsistency between the statutory provision cited and the particulars of the offence rendered the charge defective. He further contends that the exact time of the alleged offence was not clearly established, thereby prejudicing his ability to respond effectively to the accusation. In his view, the defect was substantive rather than technical and could not be cured under Section 382 of the Criminal Procedure Code. He urges the Court to find that the defective charge vitiated the proceedings and warrants quashing of the conviction.
9. The third ground, whether the evidence admitted and relied upon was illegal for lack of constitutional and legal safeguards, the Appellant submits that the exhibits were improperly obtained and admitted. He contends that the items allegedly recovered were not properly marked for identification, that there was no demonstrated chain of custody, and that no recovery forms or inventory documentation were produced. While relying on the case of Justus Musau Wambua & Another versus Republic, the appellant argues that the search and seizure were conducted without proper legal authority thereby infringing his constitutional rights. He maintains that the admission of such evidence violated Article 50 of the Constitution and undermine the integrity of the trial, rendering the conviction unsafe.
10. On the fourth issue, whether an appellate court can rectify errors in the charges and convict on amended charges without giving an opportunity to the appellant to plead to the amended charges under Section 214 of the Criminal Procedure Code. The Appellant challenges the sentence imposed as disproportionate and excessive. He submits that the cumulative sentence of five years on the first count and two years on the second count, or the alternative fines imposed, was harsh given that the value of the stolen ox plough was Kshs. 18,000/=. He argues that the trial court failed to consider mitigating factors including his plea of guilty, the relatively low value of the property and the possibility of rehabilitation. He further contends that the court did not properly apply the principle of totality in structuring the sentences and failed to consider non-custodial alternatives. In addition, he invokes Article 50(2)(p) of the Constitution, submitting that he was entitled to benefit from the least severe punishment applicable and that the sentence imposed was inconsistent with proportionality and fairness in sentencing.
11. In light of the foregoing, the Appellant prays that this Court quashes the conviction on account of an equivocal plea and defective charges, sets aside the sentence imposed, and orders his release. In the alternative, he seeks a reduction of the sentence or substitution with a non-custodial sentence, urging the Court not to order a retrial given the period already served.
b) Respondent’s Submissions
12. The Respondent opposes the appeal on conviction but partially concedes on sentence.
13. The Respondent submits that the Appellant was properly charged with the offences of housebreaking contrary to Section 304(1) of the Penal Code and stealing contrary to Section 268 as read with Section 275 of the Penal Code. It is urged that the Appellant unequivocally pleaded guilty to both counts and was thereafter sentenced to a fine of Kshs. 200,000 or five years’ imprisonment in default on the first count, and a fine of Kshs. 100,000 or two years’ imprisonment in default on the second count to run consecutively.
14. On the issue of whether the plea was equivocal, the Respondent contends that the record of the trial court proceedings clearly demonstrates that the Appellant understood the charges and the proceedings in their entirety. It is submitted that the charges were read out to him and that he followed the proceedings without any indication of confusion or misunderstanding. According to the Respondent, there is nothing on record to suggest that the plea was ambiguous or improperly taken. The Respondent further argues that sentencing was not conducted immediately after the plea was entered, thereby affording the Appellant sufficient time to reflect on his decision to plead guilty. In the circumstances, the Respondent maintains that the plea was unequivocal.
15. On the issue of sentence, the Respondent submits that sentencing is a matter within the discretion of the trial court. However, it is acknowledged that the offences in question arose from the same transaction and were committed against the same complainant. The Respondent notes that the general principle is that where multiple offences arise from a single transaction, the sentences should ordinarily run concurrently unless exceptional circumstances exist. The Respondent placed their reliance on the decision of the Court of Appeal in Peter Mbugua Kabui v. R [2016] KLR where the court reiterated that sentences for offences committed in the same transaction should run concurrently. The Respondent also refers to paragraph 7.13 of the Sentencing Policy Guidelines, which provides that where offences emanate from a single transaction sentences should run concurrently while consecutive sentences are appropriate where offences arise from multiple transactions or involve multiple victims.
16. In conclusion, while maintaining that the conviction was proper and the plea unequivocal, the Respondent concedes the appeal to the limited extent that the sentences ought to have been ordered to run concurrently rather than consecutively. It is therefore urged that the appeal be dismissed on conviction but allowed only to the extent of directing that the sentences run concurrently.
Analysis and determination
17. This being a first appeal, the duty of the court is to analyze and re-evaluate afresh the evidence adduced before the lower court and drawn its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The Court of Appeal in Okeno vs Republic [1972] EA 32 set out the duty of a first appellate court as follows:
“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
18. The issues identified for determination are:
a. Whether the plea was equivocal
b. Whether the charge sheet was defective and prejudicial to the Appellant.
c. Whether the sentence imposed on the Appellant was harsh and whether it ought to have run concurrently
Whether the plea was equivocal
19. The Appellant contends that the plea was not unequivocal arguing that the trial court failed to comply with the safeguards set out in Adan v Republic (Supra). He submits that the record does not demonstrate that the essential ingredients of the offences were explained to him in a language he understood nor that he was cautioned as to the consequences of pleading guilty. He further asserts that, being unrepresented, the trial court ought to have exercised heightened caution.
20. The Respondent on the other hand, maintains that the plea was properly taken. The charges were read out, the Appellant responded clearly and the facts were narrated and admitted. Further, the trial court deferred sentencing pending a pre-sentence report which afforded the Appellant time to reflect.
21. The manner of taking pleas was explained in the case of Adan v Republic (1973) EA 445 where the Court of Appeal laid down the steps which should be followed in taking pleas 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.”
22. Upon re-evaluating the record, the plea was taken in English, Kiswahili and Kikamba, languages which the Appellant understands and does not dispute as being conversant with. The court record indicates that on 13th May 2024 the two counts were read out to the Appellant and he replied to each of the counts that the charges were true. The matter was then adjourned to 20th May 2024 when the facts of the case were then read out to the Appellant. The Appellant was then asked whether he admitted the facts as read out and he answered in the affirmative. He was thereafter convicted on his own plea of guilty.
23. In my view the facts as set out by the prosecution were sufficiently detailed and captured all the material ingredients of the offences. They were adequate to enable the Appellant to understand the charges he was facing. There is no indication on the record that he raised any protest, qualification or explanation inconsistent with guilt. The procedure followed substantially mirrors the steps set out in Adan v Republic (Supra), which are reading and explaining the charge, recording the plea, outlining the facts and confirming the accused’s admission before conviction.
24. While the Appellant argues that the record does not expressly show that each ingredient was broken down or that a warning was administered, the law requires substantial compliance ensuring that the plea is clear, voluntary and informed. In the absence of any ambiguity on record or any indication of misunderstanding, the plea cannot be said to have been equivocal. Accordingly, the conviction founded on that plea is safe.
Whether the charge sheet was defective and prejudicial to the Appellant
25. The Appellant argues that there was inconsistency between the section cited and the particulars relating to the timing of the offence, rendering the charge incurably defective and prejudicial. The Respondent does not directly concede this issue but maintains that the conviction was proper.
26. A charge is defective if it fails to disclose an offence known in law or if it is so framed as to prejudice the accused in understanding the case he is to meet. The test is whether the defect occasioned a miscarriage of justice. From the record, the charge clearly stated the offence of house breaking contrary to section 304(1) of the Penal Code and set out detailed particulars including the date, place, complainant, and intent. The second count similarly particularized the items allegedly stolen and their value. Even assuming there was any inconsistency in the description of time, the Appellant pleaded guilty to the charge as framed and admitted the factual narrative supporting it. No objection was raised at the trial stage. Under Section 382 of the Criminal Procedure Code, minor defects that do not occasion prejudice are curable. There is nothing to demonstrate that the Appellant was misled as to the nature of the accusation. The charge sheet therefore cannot be said to have been fatally defective.
Whether the sentence imposed on the Appellant was harsh and whether it ought to have run concurrently
27. The appellant contends that the sentence imposed was disproportionate, failed to consider mitigation and did not adhere to the principle of totality. He also invokes constitutional proportionality in sentencing. The Respondent maintains that sentencing lies within the discretion of the trial court but concedes that the offences arose from a single transaction and were committed against one complainant. The Respondent relied on the decision in Peter Mbugua Kabui v Republic (Supra) where the Court of Appeal reiterated that sentences for offences committed in the same transaction should ordinarily run concurrently.
28. From the record, both counts stemmed from the same incident, on the same date against the same complainant. There is no indication of separate or distinct transactions. The general principle is that where offences arise out of a single transaction, concurrent sentences are appropriate unless there are exceptional circumstances. While the trial court was entitled to consider that the Appellant was a repeat offender and to impose a deterrent sentence, the structuring of the sentence must still comply with established sentencing principles. In the absence of exceptional circumstances warranting consecutive terms, the sentences ought to have run concurrently.
29. As to the length of the custodial terms or the fines imposed, they fall within the statutory limits prescribed by the Penal Code. There is no basis to conclude that the trial court acted on a wrong principle or overlooked material factors in determining the sentence. The only error discernible relates to the manner in which the sentences were ordered to run.
30. This appeal therefore partly succeeds. The conviction is upheld, but the sentences shall run concurrently. This judgment shall also apply to Machakos High Court Misc Criminal Application No E072 of 2024 Simon Kitwa Mutiso.
Orders accordingly.
Dated, Signed and Delivered at Machakos this 6th day of March 2026