The Appellant was convicted and sentenced to serve 20 years imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8 (4) of the Sexual Offences Act on his own plea of guilty.
The particulars of the offence were that the Appellant on diverse dates between 8th November 2022 and 23rd January 2023 at Rapogi shopping Centre, North Kanyamkago Location, Uriri Sub-County in Migori County intentionally caused his penis to penetrate the vagina of P. A. O a child aged 17 years.
The Appellant was aggrieved by the conviction and sentence and he filed the appeal herein vide Petition of Appeal filed on 12th July, 2024 on the following grounds:
(a) That the Trial Court erred in both law and facts in not rewarding the Appellant a discount of one third in his sentence following plea of guilty pursuant to paragraph 4.3 of the Judiciary Sentencing Policy Guidelines Revised in 2023.
(b) That the Trial Magistrate erred in both law and fact in not making a finding that the age of the Complainant was not proved beyond the reasonable doubt as she was 18 years.
(c) That the Trial Magistrate erred in both law and fact that in not making a finding that the conduct of the Complainant played a fundamental role in this defilement.
Reasons wherefore:
The Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside.
This Appeal was canvassed by way of written submissions.
The Appellant in his written submissions dated 6th March 2025 included additional grounds of appeal and submitted that he was coerced and deceived by fellow inmates and the police to admit the charge against him under the belief he would be pardoned. He submitted that the sentence was unlawful and that the dictates of the Sentencing Policy Guidelines were not adhered to in passing sentence.
The Respondent on the other hand in their submissions dated 3rd June 2025 invited the court to dismiss the appeal as the Appellant changed plea after the statements, charge sheet and medical exhibits had been supplied to him and he was convicted on his own plea of guilty and sentenced to 20 years imprisonment.
It was submitted that mandatory sentences remain constitutional and cited the holding in Maingi and 5 Others Vs DPP and Another (Petition No E017 of 20210 [2022] Eklr where the High Court clarified that mandatory sentences are not inherently unconstitutional. It was however conceded that Section 8(4) provides for a penalty of not less than 15 years imprisonment and the same should apply herein.
It was also submitted that the Complainant’s age was proved to be 17 years as she was born on 20th October 2005.
This court has re-looked the proceedings in the trial court and established that when the Appellant was arraigned in court he was asked which language he wished to use during his trial and the record shows his response as;
“English/ Swahili/Luo/English”
The Appellant was also informed of his rights under Article 50(2) (g) of the Constitution as well as encouraged to apply to the Legal Aid Board for assistance if he desires so.
The Appellant is indicated as having agreed to proceed without an advocate and the charge was read to him in English and he pleaded not guilty.
The Appellant was admitted to bond of Kshs. 100,000/= with a surety and trial set for 6th March 2023.
On 6.3.2023 the Appellant was absent and trial was deferred to 12.3.2023
When the Appellant was produced in court on 12th April 2023 he requested that the charge be read afresh to him and the same was read in Kiswahili language which was indicated he understood and he responded that it was true.
Facts were also read to him in Kiswahili language and he said the facts were correct.
Upon the Trial Magistrate taking the Appellant’s mitigation he sentenced him to serve 20 years imprisonment.
As conceded by the Respondent Section 8(4) of the Sexual Offences Act provides:
“a person who commits an act of defilement with a child within this age range is liable upon conviction to imprisonment for a term of not less than fifteen years.”
The Trial Magistrate did not give a reason why the sentence against the Appellant was enhanced beyond the minimum provided in the Act considering he opted to plead to the charge and save precious judicial time.
Secondly this court finds that it is not clear what language the Appellant chose to use during trial as it is not distinguished when the inquiry was made and in the 1st instance it is shown English language was used but in the second instance when he requested for the charge to be read to him it is indicated the same was done in Kiswahili language without explanation as to the shifting from one language to another.
This court finds that the Trial Magistrate erred not only in meting a sentence beyond the minimum without assigning any reason but did not also tell the Appellant the implications of pleading guilty to an offence that attracts very stiff penalties but worse still failed to comply with the constitutional provisions under Article 50(2) (b) to be informed of the charge with sufficient details to answer to it. This court also finds that the Trial Magistrate failed to comply with the principles applicable in taking an unequivocal plea as settled in the case of Adan Vs Republic by failing to distinguish the language the Appellant had chosen to use and also failing to consistently use the same language throughout the trial and therefore prejudicing the Appellant.
In consideration of the above this court finds that the plea was not unequivocal and the conviction and sentence of the Appellant on plea of guilty was unsafe and cannot stand. The conviction is quashed and sentence set aside. The Appellant to be set at liberty unless otherwise lawfully detained.
Right of Appeal 14 days.
Dated, Signed and Delivered at Migori this 27th day of June, 2025
The particulars of the offence were that the Appellant on diverse dates between 8th November 2022 and 23rd January 2023 at Rapogi shopping Centre, North Kanyamkago Location, Uriri Sub-County in Migori County intentionally caused his penis to penetrate the vagina of P. A. O a child aged 17 years.
The Appellant was aggrieved by the conviction and sentence and he filed the appeal herein vide Petition of Appeal filed on 12th July, 2024 on the following grounds:
(a) That the Trial Court erred in both law and facts in not rewarding the Appellant a discount of one third in his sentence following plea of guilty pursuant to paragraph 4.3 of the Judiciary Sentencing Policy Guidelines Revised in 2023.
(b) That the Trial Magistrate erred in both law and fact in not making a finding that the age of the Complainant was not proved beyond the reasonable doubt as she was 18 years.
(c) That the Trial Magistrate erred in both law and fact that in not making a finding that the conduct of the Complainant played a fundamental role in this defilement.
Reasons wherefore:
The Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside.
This Appeal was canvassed by way of written submissions.
The Appellant in his written submissions dated 6th March 2025 included additional grounds of appeal and submitted that he was coerced and deceived by fellow inmates and the police to admit the charge against him under the belief he would be pardoned. He submitted that the sentence was unlawful and that the dictates of the Sentencing Policy Guidelines were not adhered to in passing sentence.
The Respondent on the other hand in their submissions dated 3rd June 2025 invited the court to dismiss the appeal as the Appellant changed plea after the statements, charge sheet and medical exhibits had been supplied to him and he was convicted on his own plea of guilty and sentenced to 20 years imprisonment.
It was submitted that mandatory sentences remain constitutional and cited the holding in Maingi and 5 Others Vs DPP and Another (Petition No E017 of 20210 [2022] Eklr where the High Court clarified that mandatory sentences are not inherently unconstitutional. It was however conceded that Section 8(4) provides for a penalty of not less than 15 years imprisonment and the same should apply herein.
It was also submitted that the Complainant’s age was proved to be 17 years as she was born on 20th October 2005.
This court has re-looked the proceedings in the trial court and established that when the Appellant was arraigned in court he was asked which language he wished to use during his trial and the record shows his response as;
“English/ Swahili/Luo/English”
The Appellant was also informed of his rights under Article 50(2) (g) of the Constitution as well as encouraged to apply to the Legal Aid Board for assistance if he desires so.
The Appellant is indicated as having agreed to proceed without an advocate and the charge was read to him in English and he pleaded not guilty.
The Appellant was admitted to bond of Kshs. 100,000/= with a surety and trial set for 6th March 2023.
On 6.3.2023 the Appellant was absent and trial was deferred to 12.3.2023
When the Appellant was produced in court on 12th April 2023 he requested that the charge be read afresh to him and the same was read in Kiswahili language which was indicated he understood and he responded that it was true.
Facts were also read to him in Kiswahili language and he said the facts were correct.
Upon the Trial Magistrate taking the Appellant’s mitigation he sentenced him to serve 20 years imprisonment.
As conceded by the Respondent Section 8(4) of the Sexual Offences Act provides:
“a person who commits an act of defilement with a child within this age range is liable upon conviction to imprisonment for a term of not less than fifteen years.”
The Trial Magistrate did not give a reason why the sentence against the Appellant was enhanced beyond the minimum provided in the Act considering he opted to plead to the charge and save precious judicial time.
Secondly this court finds that it is not clear what language the Appellant chose to use during trial as it is not distinguished when the inquiry was made and in the 1st instance it is shown English language was used but in the second instance when he requested for the charge to be read to him it is indicated the same was done in Kiswahili language without explanation as to the shifting from one language to another.
This court finds that the Trial Magistrate erred not only in meting a sentence beyond the minimum without assigning any reason but did not also tell the Appellant the implications of pleading guilty to an offence that attracts very stiff penalties but worse still failed to comply with the constitutional provisions under Article 50(2) (b) to be informed of the charge with sufficient details to answer to it. This court also finds that the Trial Magistrate failed to comply with the principles applicable in taking an unequivocal plea as settled in the case of Adan Vs Republic by failing to distinguish the language the Appellant had chosen to use and also failing to consistently use the same language throughout the trial and therefore prejudicing the Appellant.
In consideration of the above this court finds that the plea was not unequivocal and the conviction and sentence of the Appellant on plea of guilty was unsafe and cannot stand. The conviction is quashed and sentence set aside. The Appellant to be set at liberty unless otherwise lawfully detained.
Right of Appeal 14 days.
Dated, Signed and Delivered at Migori this 27th day of June, 2025