https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9940

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CRIMINAL APPEAL NO. E071 OF 2025** **BENARD KIPKOECH RONO…..……………...…..……..APPELLANT** **-VERSUS-** **REPUBLIC…………………………..…………..…………RESPONDENT** **(*Being an Appeal from the original conviction and sentence contained in the Judgment of A.K. Makoross SPM in Tamu Cr. Case Number E325 of 2023*)** **JUDGMENT** **Introduction** 1. Benard Kipkoech Rono, the Appellant herein was charged with the offence of causing grievous harm contrary to Section 234 of the Penal Code. The particulars of the offence being that on the 24th day of October, 2023 at Tumbilil village in Kipkelion Subcounty within Kericho County, the Appellant intentionally and unlawfully did grievous harm to Nicholas Kipkoech Sambu. 2. The charge was read to the Appellant on 8th November, 2023 and he pleaded guilty. He was convicted on his own plea of guilty and after the presentence report was provided to the court, the Appellant was sentenced to 20 years’ imprisonment. **The Appeal** 1. The Appellant has appealed against both the conviction and sentence of twenty years imprisonment on the following homemade grounds:- 1. *That the trial court erred in law and in fact in failing to establish that the prosecution did not prove the ingredients of the offence of defilement beyond reasonable doubt.* 2. *That the trial court erred in law and in fact in relying on fanciful and remote possibilities to convict the Appellant.* 3. *That the trial court erred in law and in fact in not weighing* *the conflicting evidence in the prosecution case that was consequential in the conviction.* 1. *The trial magistrate erred in law and in fact in not appreciating the Appellant’s cogent defence that overwhelmed the prosecution case.* 2. The Appellant prayed that the appeal be allowed, the conviction quashed and the sentence set aside. The appeal was heard by way of written submissions. Both parties filed their submissions. **Submissions by the Appellant** 1. The appeal was canvassed by way of written submissions. In his submissions the Appellant gives same grounds as those listed in his Memorandum of Appeal. That he was convicted on his own plea of guilty and urges the court to reverse the plea and give orders for retrial because the whole process of plea and convicting him breached his right to a fair trial. 2. He also submits on the severity of the sentence and urges the court to reduce the sentence and be more lenient. His argument is that no life was lost and therefore the sentence of twenty years was excessively high in the circumstances. **Submissions by the Respondent** 1. The State on the other hand submitted that the plea of guilty was unequivocal, while citing the Provisions of Section 207 of the Criminal Procedure Code. That the charge was read to the Appellant on 8th November, 2023 in a language he understood which was Kipsigis as indicated on the record and when asked to respond, he responded in the affirmative. The facts were read and again the Appellant responded in the affirmative. The State submitted that the Appellant was sufficiently informed of the charge. 2. The Respondent submitted that the procedure of plea taking strictly complied with the principles laid down in ***Adan v Republic [1973] EA 445***, where the Court of Appeal set out the mandatory steps for a valid plea of guilty, to wit: - 3. Explanation of the charge in a language understood. 4. Recording of the accused's own words. 5. Narration of facts by prosecution. 6. Confirmation of facts by accused. 7. Counsel submitted that all these steps having been fully complied with, an appeal against conviction cannot lie where an accused has pleaded guilty, except on, ambiguity of plea, lack of understanding and impropriety in plea taking as codified under Section 348 of the Criminal Procedure Code. 1. On sentencing, the Respondent submitted that the offence of grievous harm under Section 234 of the Penal Code attracts a maximum sentence of life imprisonment. That the trial court imposed 20 years’ imprisonment, which in the Respondent’s submission was lawful and lenient, considering the aggravating factors in the commission of the offence. The Respondent urged the court not to interfere with the sentencing discretion of the trial court. **Analysis and Determination** 1. The duty of an Appellate court is now well established and that is to evaluate and analysis the evidence a fresh and come up with its own findings/conclusions having in mind that it never saw nor heard the Appellant and witnesses during the trial to be able to gauge their demeanor. The Law is that issues of demeanor are best left to the trial court which heard the Appellant and chose to convict and sentence him. ***See Okeno vs Republic (1972) EA 32.*** 2. This appeal arises out of a plea of guilty to the charge of Causing grievous harm. The issue that arises is whether the plea of guilty was unequivocal according to the principles set out in the case of ***Adan – vs – Republic [1973] EA 445*** and also the case of ***Olel – vs – Republic [1989] KLR 444***. The latter case supports the Respondent’s contention that where an accused person is convicted on his own plea of guilty, he can only appeal against the legality or severity of the sentence. In the case of ***Ndede – vs – Republic [1991] KLR 561*,** the Court of Appeal held that the bar against appellant conviction on plea of guilty is not absolute as Section 348 of the Criminal Procedure Code seems to suggest. 1. What emerges from the above authorities is that a plea of guilty is not an absolute bar to appealing against conviction on any ground which the court in its absolute discretion may find justifiable. The Appellant herein alleges that his plea of guilty was not unequivocal. He asks for a retrial of his case. 2. From the cited authorities, the courts have absolutely no reason not to accept a plea of guilty from an accused person though caution and circumspection must be taken in the way in which such pleas are taken. The requirements for a plea of guilty were codified by the court of appeal in the **Adan case (Supra*)*** where the Court of Appeal stated:- ***“The courts have always been concerned that an accused person should not be convicted on his plea unless it was certain that he really understood the charge and had no defence to it. The danger of an equivocal plea is obviously greatest where the accused is unrepresented and is of limited education and does not speak the language of the court.”*** 1. In this particular Appeal from the original record and the submissions, the charge was read and explained to the Appellant in Kipsigis which is his language. 1. In ***Ngigi – Vrs – Republic [1987] KLR 98*** it was further held by the High Court that the accused should be required to admit or deny every element of the charge unequivocally. In the case of ***Kariuki – vs – Republic [1984] KLR 809*** the Court provided on outline of the manner in which a plea of guilty is to be recorded. The plea must be free and voluntary as it is inappropriate for the Judge/Magistrate to advise an accused person as to whether to plead guilty or not. His only function is only to explain the charge and make sure the accused understands it.” 2. In the ***Olel case (Supra) the High Court persuasively*** stated that if a plea of guilty is not voluntary or is obtained by force or threats or torture or even deception it cannot be said to be unequivocal it would in these circumstances be a nullify. 3. In the instant case, and from the proceedings in the trial court, it is clear that the trial court observed all the steps required by law before recording a plea of guilty. After the facts were read out to the Appellant, he stated, “the facts are true.” He therefore had understood what had been read to him and translated to Kipsigis and that is why he was able to respond. This kind of response is unequivocal. 1. The Appellant had argued that the sentence was excessive. Section 234 of the Penal Code sets maximum sentence for the offence of causing grievous harm as life imprisonment. The learned trial Magistrate applied his discretion and sentenced the Appellant to 20 years. I have not been given any good reason to interfere with the sentence, the trial Magistrate having observed the Appellant, his demeanor and having applied discretion. 1. I have also taken into cognizance that the trial magistrate considered the gravity of the offence and the circumstances under which it was committed and even went a head to ask for a presentence report and considered the same. 2. **In those circumstances and for the reasons given above, I find no merit in the Appellant’s appeal on both conviction and sentence. The same is hereby dismissed in its entirety. Right of appeal within 14 days from today.** **It is so ordered.** **JUDGMENT** delivered virtually, dated and signed at **Nairobi** This **3rd** day of **July** 2026 **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the presence of:** *Leadsy* – Court assistant Appellant – present in person *(virtually from Kisumu Max.)* *Ms Jebichi* - for the State/Respondent.