REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO. E021 OF 2025
VICTOR MAGEMBE…...APPELLANT
VERSUS
REPUBLIC……………………….…………………RESPONDENT
(Being an appeal from the ruling or order of the Magistrate’s Court at Ogembo, Hon. P.C.Biwott, (CM) delivered on 8 th November, 2024 in Ogembo MCSO/E094/2024)
JUDGEMENT
1. This appeal is against the ruling or order of the Magistrate’s Court at Ogembo, Hon. P.C.Biwott, (CM) delivered 8 th November, 2024 in Ogembo MCSO E090 of 2024 wherein the appellant was convicted on his own guilty plea for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, No. 3 of 2006.
2. The particulars of the offence is to the effect that on the 3 rd November, 2024 at Nyamoko village in Kenyenya Sub-County within Kisii County the appellant intentionally and unlawfully caused his penis to penetrate the vagina of L.K a child aged 17 years old. 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.
3. The record shows that the appellant was first arraigned in court on 7 th November, 2024 when charges were read to him. It is not clear which language was used in reading the charges to the appellant. In the pre-printed page, Kiswahili as a language has been ticked suggesting that the charges were read to the appellant in Kiswahili. However, the response of the appellant has been recorded in English and I quote, “it is true”. It would have been expected that may be the answer would have been, “ni ukweli” which has the equivalent of the answer recorded in English.
4. The pre-printed section reads and I quote, “The substance of the charge(s) and every element thereof has been stated by the court to the accused person in the language he/she understands, who being asked whether he/she admits or denies the truth of the charge(s) Replies.”
5. With the above reply attributed to the appellant having been recorded, the trial court entered a plea of guilt against the appellant. The prosecutor informed the court that the facts were not ready. The reading of the facts was then deferred to 8 th November, 2024.
6. The facts which were read to the appellant on 8 th November, 2024 were that on 3 rd November, 2024 at 6:00pm the complainant in the company of a friend. The accused herein who was schoolmate lured complainant to his home. They had sex at night without protection. The complainant’s mother looked for her and found at the accused’s house. The complaint was booked to community policing. The complainant was examined in hospital and she was found to be 17 years old. The Police arrested the accused and charged. The Birth Certificate of the complainant, P3 and PRC forms were produced as exhibit 1, 2 and 3 respectively.
7. The Appellant is recorded as having responded to the reading of the facts by stating, “Facts correct” . The trial court then entered a conviction on own plea of guilt against the appellant.
8. On sentencing, the prosecution confirmed that the appellant had no prior record. In mitigation, the appellant informed the court that he was 18 years old and that his birth certificate was home. He then begged the court for pardon. The court sentenced the appellant to 10 years imprisonment noting that the appellant had admitted to being an adult in his mitigation.
9. The Appellant pursuant to leave granted to appeal out of time vide HCCRMISC Application No. E004 of 2025 delivered by Hon. Lady Justice T.A.Odera filed the instant Petition of Appeal dated 23 rd July, 2025. The grounds cited by the appellant can be summarized as follows;
(a) That the appellant was convicted based on facts that were not tested in evidence to the requisite standards after the appellant pleaded guilty.
(b) That the conviction of the appellant was a nullity as the trial court proceeded without warning the appellant of his right to a fair and impartial trial as enshrined under Articles 50(2)(h) and 25(c) of the Constitution of Kenya, 2010.
(c) That the trial court failed to order for a check on the appellant’s mental health and that the plea entered by the appellant was not unequivocal.
(d) That the sentence meted on the appellant was excessive and punitive and that the trial court failed to consider that both the appellant and the complainant were of the same age, being 18 and 17 years respectively who ought to have been counseled with a warning to the appellant
10. APPELLANT’S SUBMISSIONS
(e) In his submissions, the Appellant submitted that he was naive, as he could not understand the right of an accused person in a court of law. That he had the right to legal representation but that the court never informed the appellant of the same. It was also his submission that the trial court had a mandate of warning the appellant over the consequences of pleading guilty, which it did not.
(f) It was submitted that the appellant was wary, confused and suffered psychologically due to police harassment hence unable to understand the charges read as it was is first time to be arraigned before court.
(g) The appellant further submitted that he was slapped with an excessive and punitive sentence.
(h) Lastly, it is submitted that the appellant and the complainant are of the same age, were students of the same school who were in the same class who were in need of protection and guidance and that the most appropriate punishment was a non-custodial sentence.
(i) When the appellant appeared virtually before this court on 20 th May, 2026 he told the court that he was a student at Ichuni Secondary School at the time of his conviction. He further told the court that he pleaded guilty on the advice of the police thinking that he was going to be allowed to go back to school.
11. Even though the respondent intimated that it filed submissions on 12 th May, 2026 no such submissions are in the relevant case tracking system.
12. ISSUES FOR DETERMINATION
Arising from the foregoing, the issues that fall for determination are:
i. Whether the plea of guilty recorded on 8 th November 2024 was unequivocal, such that Section 348 of the Criminal Procedure Code operates as a complete bar to any challenge to the conviction.
ii. Whether the sentence of 10 years imprisonment meted against the appellant is lawful.
13. ANALYSIS AND DETERMINATION
i) Whether the plea of guilty recorded on 7 th November 2024 was unequivocal, such that Section 348 of the Criminal Procedure Code operates as a complete bar to any challenge to the conviction.
The Criminal Procedure Code provides in Section 348 that n o appeal shall be allowed in the case of an accused person who has pleaded guilty and who has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence. In the case of Odhiambo Olel v Republic [1989] KEHC 78 (KLR) it was held;
“In our view, the line of authorities cited by the learned Deputy Public Prosecutor fully establish that where the plea of guilty is clearly unequivocal, an appeal against conviction does not lie. Although Mr Khaminwa, learned counsel for the appellant, could not bring himself to expressly accepting the above position as the law, he was not able to cite any authority to the contrary.
On our part we accepted the above as a correct statement of the law and reject any view to the contrary as not having any legal basis.”
The Criminal Procedure Code provides in section 207 the procedure for taking plea as follows:
(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 a plea agreement.
(2) If the accused person admits the truth of the charge otherwise than by a 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.
(3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided.
(4) If the accused person refuses to plead, the court shall order a plea of "not guilty" to be entered for him
In Adan -Vs- Republic [1973] EA 445 the procedure for plea taking was set out 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 in 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 the facts or raises any question of his guilty 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.
14. The present appeal provides a unique set of facts; both the appellant and the complainant were students in the same High School. This fact was stated when the facts were read to the appellant and the trial court. The complainant was born on 3 rd September, 2007 as per her certificate of birth produced as exhibit 1. The appellant told the court in his mitigation that he was 18 years old and that his certificate of birth was at home. The court took it as an admission by the appellant that he was an adult. No pre-sentence report was called for or a report from the school where the subjects were schooling.
15. When the appellant purportedly pleaded guilty, he was never warned of the consequences of such plea. There was no call for his age assessment to rule out the possibility that he was a minor. It is apparent that there was no family member accompanying the appellant when he made his debut in court. The trial court should have exercised heightened caution and warn itself that it was dealing with a potential child. It was necessary for the trial court to ascertain his age and that he understood the proceedings he was being subjected to. When he purportedly stated, “facts correct”, the trial court should have exercised intrinsic judicial duty to warn him of the penal consequences.
16. At the very least, the trial court ought to have postponed the trial to such a time when legal representation would be availed to the appellant. It was also imperative to call for a pre-sentence report that would have guided the court in understanding the circumstances under which the offence was committed and the appropriate sentence to be meted out. The right to fair trial is a fundamental right that cannot be limited under Article 25(c) of the Constitution.
17. Under Article 50(2) (b), (g) and (h) the appellant was entitled to have information on the charges he was facing given in sufficient details to enable him to answer, to be informed of his right to choose, and be represented by an advocate and to be informed of this right promptly. Being a high school student whose vulnerability was evident, having been charged with a serious offence, the trial court was constitutionally mandated to have an advocate assigned to the appellant by the state at the state expense, if substantial injustice would otherwise result, and for the appellant to be informed of this right promptly.
18. The above constitutional safeguards were ignored with the result that we have a child languishing in jail who was yanked from his classroom, convicted and sentenced without legal representation and in the absence of family. Our criminal justice system, as reformed by the transformative provisions of our Constitution, was meant to ensure fairness in trails so that justice is seen to be done. More so, trials involving children who are in conflict with the law.
19. For the above reason the conviction of the appellant runs afoul of the constitution, it seems as if the trial court was in haste to go to the next file. It is the finding of this court that the plea as taken was not unequivocal and as such the conviction of the Appellant ought to be quashed.
ii) Whether the sentence of 10 years imprisonment meted against the appellant was lawful.
20. The Sexual Offences Act, Section 8(4) provides that a person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
The Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) held that its reasoning in Muruatetu was confined to the mandatory death sentence for murder, and that any challenge to the constitutional validity of minimum sentences other than for murder must be properly filed, presented, and fully argued before the High Court and escalated through the appropriate channels and that it cannot simply be assumed or applied by a court on its own motion.
As was the finding of the Supreme Court in the above-cited authority absent such a properly constituted challenge on the constitutional validity of minimum sentences for sexual offences, the 15-year minimum in Section 8(4) remains valid and binding law.
It follows that the sentence of imprisonment for 10 years was as unlawful a sentence being below the minimum threshold set by legislation as the conviction of the appellant.
21. However, it is now moot to debate the issue of sentence having found that the appellant was unlawfully conviction.
22. Considering that the appellant has been serving his sentence of imprisonment since 8 th November, 2024 which translates to more than one and a half years I do not deem it fit to order a retrial.
23. In the circumstances, I do quash the conviction of the appellant, set aside his sentence of imprisonment and order that he be set at liberty unless he is otherwise lawfully held.
Judgment read, dated and delivered virtually on 23 rd July 2026
R. K.Koech
JUDGE
In the presence of ;
Mr. koima appearing virtually for the Respondent.
The Appellant appearing virtually from Kibos Medium Prison
Ms. Roselyne Makali, court assistant.
Right of appeal within 14 days.
Page 11Page 11JUDGEMENT HCCRA E021 OF 2025
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO. E021 OF 2025
VICTOR MAGEMBE…...APPELLANT
VERSUS
REPUBLIC……………………….…………………RESPONDENT
(Being an appeal from the ruling or order of the Magistrate’s Court at Ogembo, Hon. P.C.Biwott, (CM) delivered on 8 th November, 2024 in Ogembo MCSO/E094/2024)
JUDGEMENT
1. This appeal is against the ruling or order of the Magistrate’s Court at Ogembo, Hon. P.C.Biwott, (CM) delivered 8 th November, 2024 in Ogembo MCSO E090 of 2024 wherein the appellant was convicted on his own guilty plea for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, No. 3 of 2006.
2. The particulars of the offence is to the effect that on the 3 rd November, 2024 at Nyamoko village in Kenyenya Sub-County within Kisii County the appellant intentionally and unlawfully caused his penis to penetrate the vagina of L.K a child aged 17 years old. 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.
3. The record shows that the appellant was first arraigned in court on 7 th November, 2024 when charges were read to him. It is not clear which language was used in reading the charges to the appellant. In the pre-printed page, Kiswahili as a language has been ticked suggesting that the charges were read to the appellant in Kiswahili. However, the response of the appellant has been recorded in English and I quote, “it is true”. It would have been expected that may be the answer would have been, “ni ukweli” which has the equivalent of the answer recorded in English.
4. The pre-printed section reads and I quote, “The substance of the charge(s) and every element thereof has been stated by the court to the accused person in the language he/she understands, who being asked whether he/she admits or denies the truth of the charge(s) Replies.”
5. With the above reply attributed to the appellant having been recorded, the trial court entered a plea of guilt against the appellant. The prosecutor informed the court that the facts were not ready. The reading of the facts was then deferred to 8 th November, 2024.
6. The facts which were read to the appellant on 8 th November, 2024 were that on 3 rd November, 2024 at 6:00pm the complainant in the company of a friend. The accused herein who was schoolmate lured complainant to his home. They had sex at night without protection. The complainant’s mother looked for her and found at the accused’s house. The complaint was booked to community policing. The complainant was examined in hospital and she was found to be 17 years old. The Police arrested the accused and charged. The Birth Certificate of the complainant, P3 and PRC forms were produced as exhibit 1, 2 and 3 respectively.
7. The Appellant is recorded as having responded to the reading of the facts by stating, “Facts correct” . The trial court then entered a conviction on own plea of guilt against the appellant.
8. On sentencing, the prosecution confirmed that the appellant had no prior record. In mitigation, the appellant informed the court that he was 18 years old and that his birth certificate was home. He then begged the court for pardon. The court sentenced the appellant to 10 years imprisonment noting that the appellant had admitted to being an adult in his mitigation.
9. The Appellant pursuant to leave granted to appeal out of time vide HCCRMISC Application No. E004 of 2025 delivered by Hon. Lady Justice T.A.Odera filed the instant Petition of Appeal dated 23 rd July, 2025. The grounds cited by the appellant can be summarized as follows;
(a) That the appellant was convicted based on facts that were not tested in evidence to the requisite standards after the appellant pleaded guilty.
(b) That the conviction of the appellant was a nullity as the trial court proceeded without warning the appellant of his right to a fair and impartial trial as enshrined under Articles 50(2)(h) and 25(c) of the Constitution of Kenya, 2010.
(c) That the trial court failed to order for a check on the appellant’s mental health and that the plea entered by the appellant was not unequivocal.
(d) That the sentence meted on the appellant was excessive and punitive and that the trial court failed to consider that both the appellant and the complainant were of the same age, being 18 and 17 years respectively who ought to have been counseled with a warning to the appellant
10. APPELLANT’S SUBMISSIONS
(e) In his submissions, the Appellant submitted that he was naive, as he could not understand the right of an accused person in a court of law. That he had the right to legal representation but that the court never informed the appellant of the same. It was also his submission that the trial court had a mandate of warning the appellant over the consequences of pleading guilty, which it did not.
(f) It was submitted that the appellant was wary, confused and suffered psychologically due to police harassment hence unable to understand the charges read as it was is first time to be arraigned before court.
(g) The appellant further submitted that he was slapped with an excessive and punitive sentence.
(h) Lastly, it is submitted that the appellant and the complainant are of the same age, were students of the same school who were in the same class who were in need of protection and guidance and that the most appropriate punishment was a non-custodial sentence.
(i) When the appellant appeared virtually before this court on 20 th May, 2026 he told the court that he was a student at Ichuni Secondary School at the time of his conviction. He further told the court that he pleaded guilty on the advice of the police thinking that he was going to be allowed to go back to school.
11. Even though the respondent intimated that it filed submissions on 12 th May, 2026 no such submissions are in the relevant case tracking system.
12. ISSUES FOR DETERMINATION
Arising from the foregoing, the issues that fall for determination are:
i. Whether the plea of guilty recorded on 8 th November 2024 was unequivocal, such that Section 348 of the Criminal Procedure Code operates as a complete bar to any challenge to the conviction.
ii. Whether the sentence of 10 years imprisonment meted against the appellant is lawful.
13. ANALYSIS AND DETERMINATION
i) Whether the plea of guilty recorded on 7 th November 2024 was unequivocal, such that Section 348 of the Criminal Procedure Code operates as a complete bar to any challenge to the conviction.
The Criminal Procedure Code provides in Section 348 that n o appeal shall be allowed in the case of an accused person who has pleaded guilty and who has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence. In the case of Odhiambo Olel v Republic [1989] KEHC 78 (KLR) it was held;
“In our view, the line of authorities cited by the learned Deputy Public Prosecutor fully establish that where the plea of guilty is clearly unequivocal, an appeal against conviction does not lie. Although Mr Khaminwa, learned counsel for the appellant, could not bring himself to expressly accepting the above position as the law, he was not able to cite any authority to the contrary.
On our part we accepted the above as a correct statement of the law and reject any view to the contrary as not having any legal basis.”
The Criminal Procedure Code provides in section 207 the procedure for taking plea as follows:
(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 a plea agreement.
(2) If the accused person admits the truth of the charge otherwise than by a 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.
(3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided.
(4) If the accused person refuses to plead, the court shall order a plea of "not guilty" to be entered for him
In Adan -Vs- Republic [1973] EA 445 the procedure for plea taking was set out 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 in 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 the facts or raises any question of his guilty 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.
14. The present appeal provides a unique set of facts; both the appellant and the complainant were students in the same High School. This fact was stated when the facts were read to the appellant and the trial court. The complainant was born on 3 rd September, 2007 as per her certificate of birth produced as exhibit 1. The appellant told the court in his mitigation that he was 18 years old and that his certificate of birth was at home. The court took it as an admission by the appellant that he was an adult. No pre-sentence report was called for or a report from the school where the subjects were schooling.
15. When the appellant purportedly pleaded guilty, he was never warned of the consequences of such plea. There was no call for his age assessment to rule out the possibility that he was a minor. It is apparent that there was no family member accompanying the appellant when he made his debut in court. The trial court should have exercised heightened caution and warn itself that it was dealing with a potential child. It was necessary for the trial court to ascertain his age and that he understood the proceedings he was being subjected to. When he purportedly stated, “facts correct”, the trial court should have exercised intrinsic judicial duty to warn him of the penal consequences.
16. At the very least, the trial court ought to have postponed the trial to such a time when legal representation would be availed to the appellant. It was also imperative to call for a pre-sentence report that would have guided the court in understanding the circumstances under which the offence was committed and the appropriate sentence to be meted out. The right to fair trial is a fundamental right that cannot be limited under Article 25(c) of the Constitution.
17. Under Article 50(2) (b), (g) and (h) the appellant was entitled to have information on the charges he was facing given in sufficient details to enable him to answer, to be informed of his right to choose, and be represented by an advocate and to be informed of this right promptly. Being a high school student whose vulnerability was evident, having been charged with a serious offence, the trial court was constitutionally mandated to have an advocate assigned to the appellant by the state at the state expense, if substantial injustice would otherwise result, and for the appellant to be informed of this right promptly.
18. The above constitutional safeguards were ignored with the result that we have a child languishing in jail who was yanked from his classroom, convicted and sentenced without legal representation and in the absence of family. Our criminal justice system, as reformed by the transformative provisions of our Constitution, was meant to ensure fairness in trails so that justice is seen to be done. More so, trials involving children who are in conflict with the law.
19. For the above reason the conviction of the appellant runs afoul of the constitution, it seems as if the trial court was in haste to go to the next file. It is the finding of this court that the plea as taken was not unequivocal and as such the conviction of the Appellant ought to be quashed.
ii) Whether the sentence of 10 years imprisonment meted against the appellant was lawful.
20. The Sexual Offences Act, Section 8(4) provides that a person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
The Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) held that its reasoning in Muruatetu was confined to the mandatory death sentence for murder, and that any challenge to the constitutional validity of minimum sentences other than for murder must be properly filed, presented, and fully argued before the High Court and escalated through the appropriate channels and that it cannot simply be assumed or applied by a court on its own motion.
As was the finding of the Supreme Court in the above-cited authority absent such a properly constituted challenge on the constitutional validity of minimum sentences for sexual offences, the 15-year minimum in Section 8(4) remains valid and binding law.
It follows that the sentence of imprisonment for 10 years was as unlawful a sentence being below the minimum threshold set by legislation as the conviction of the appellant.
21. However, it is now moot to debate the issue of sentence having found that the appellant was unlawfully conviction.
22. Considering that the appellant has been serving his sentence of imprisonment since 8 th November, 2024 which translates to more than one and a half years I do not deem it fit to order a retrial.
23. In the circumstances, I do quash the conviction of the appellant, set aside his sentence of imprisonment and order that he be set at liberty unless he is otherwise lawfully held.
Judgment read, dated and delivered virtually on 23 rd July 2026
R. K.Koech
JUDGE
In the presence of ;
Mr. koima appearing virtually for the Respondent.
The Appellant appearing virtually from Kibos Medium Prison
Ms. Roselyne Makali, court assistant.
Right of appeal within 14 days.
Page 11Page 11JUDGEMENT HCCRA E021 OF 2025