https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9404

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **CRIMINAL APPEAL NO. E039 OF 2025** **JOHN MUIRURI GATHUNDIA ......................................APPELLANT** **VERSUS** **REPUBLIC .......................................................................RESPONDENT** *(Being an Appeal from the Judgment of Hon. Renna Aketch (SRM) in Kenol Sexual Offences Case No. E051 of 2023 delivered on 25th day of March, 2025)* **JUDGMENT** 1. The Appellant was charged with the offence of defilement contrary to **Section 8(1)** as read with **Section 8(2)** of the **Sexual Offences Act No. 3 of 2006**. The particulars of the charge were that on the 14th day of November 2023 at around 1500 hrs at Karungangi area in Kenol township, Muranga County, he intentionally caused his penis to penetrate the vagina of K.N.K, a child aged eight years. He faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the same Act. 2. During trial, the Appellant initially pleaded not guilty. However, following a mental assessment and period of treatment at Mathari Hospital where he was found fit to plead, he indicated a desire to change his plea. On the 12th February 2025, the Appellant pleaded guilty. The facts were later read to him, was convicted and sentenced to life imprisonment on 25th March 2025. 3. The Appellant, aggrieved by the conviction and sentence, preferred this appeal by filing a Petition of Appeal and later filed an Amended Petition of Appeal whereby he cited the following grounds: 4. *That the trial magistrate erred in law and facts by failing to inform the appellant the consequences of entering plea of the guilty in such a serious charge.* 5. *That the trial magistrate erred in law and fact by failing to inform the appellant his right to be presented by an advocate by state as per Article 50(2)(g) of the Constitution.* 6. *That the trial magistrate erred in law and facts by failing to consider that the appellant pleaded not guilty to the offence at his first plea.* 7. *That the trial magistrate erred in law and fact by failing to inform the appellant his right to defend himself.* 8. The Appeal was heard by way of Written Submissions. **Appellant’s Submissions** 1. The Appellant contends that his conviction was a product of procedural unfairness and coercion. He points out that he initially pleaded not guilty to the charge of defilement on 16th November 2023, but claims that during a period when he was physically unwell and suffering from chest pains, he was forced and advised to plead guilty to these vicious charges. He further submits that the entire case is founded upon a grudge held by the complainant’s mother, whom he accuses of coaching both the victim and his own daughter to provide false testimony against him for undisclosed and bitter reasons. 2. He refers to the probation report prepared prior to his sentencing he states that the community describe him as a hardworking man and a dedicated breadwinner who had never before been implicated in criminal activities. He maintains that his lack of remorse was not a sign of defiance but a reflection of his innocence, as he eventually insists he did not commit the offence and was unwilling to apologize for an act he did not perform. He invokes Article 50(1) of the Constitution, asserting his right to a fair and public hearing before an independent and impartial tribunal was infringed. 3. The Appellant finally prays that this court considers the gravity of the life sentence imposed, allows the appeal, and remits the matter back to the trial court for a fresh plea and trial in the interest of justice. **Respondent’s Submissions** 1. The Respondent opposes the appeal and maintains that both the conviction and the sentence were proper, lawful, and supported by the record. 2. It is the Respondent’s submission that the Appellant’s plea of guilty was taken unequivocally in a language he understood. The Respondent emphasizes that the trial court strictly adhered to the procedural guidelines for plea-taking as articulated in the landmark case of ***ADAN -V- REPUBLIC EA 445***, which mandates that: *“(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.”.* 1. The Respondent points out that the Appellant, after being found fit to plead, insisted on changing his plea to guilty and admitted to the facts of the case without any dispute or challenge to their accuracy, stating clearly: **“Ni ukweli. I did it”**. Consequently, the Respondent argues that under **Section 348** of the **Criminal Procedure Code**, the Appellant is barred from appealing the conviction itself. In support of this position, the Respondent relies on the decision in ***OLEL V REPUBLIC KLR 444***, where it was held that: *“Where a plea is unequivocal and the facts constituted an offence that the appellant agreed to have committed, the proof of the charge was beyond reasonable doubt... Section 348 of the Criminal Procedure Code does not merely limit the right of appeal in such cases but bars it completely.”.* 1. The Respondent submits that the penalty of life imprisonment is the mandatory minimum prescribed by **Section 8(2)** of the **Sexual Offences Act** for the defilement of a child under the age of eleven years. The Respondent maintains that the trial court correctly applied the law to the facts and prays that this court finds the appeal to be without merit and dismisses it accordingly. **Analysis and determination** 1. This being a first appeal, this court has the duty to review the evidence, carry out its own evaluation and arrive at its own conclusion, save that due allowance must be made for the fact that the trial court had the advantage of hearing the witnesses first-hand as well as observing their demeanor (see ***Okeno vs Republic (1972) E.A 32).*** 2. The conviction of the Appellant arose from a plea of guilty, the issues for determination are restricted by ***Section 348*** of the **Criminal Procedure Code** to the legality of the plea and the sentence. The issues that lend themselves for determination are therefore: 3. *Whether the Appellant’s plea of guilty was unequivocal.* 4. *Whether the sentence of life imprisonment was lawful.* *Whether the Appeal was unequivocal* 1. Section 348 of the criminal Procedure Code provides that no appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea except as to the extent or legality of the sentence. 2. Nevertheless, the appellate court retains jurisdiction to interrogate whether the plea was unequivocal. Where a plea is found to be equivocal, the resulting conviction cannot stand notwithstanding Section 348 of the Criminal Procedure Code. 3. The law regarding the taking of pleas is well settled. In ***Adan v Republic* (1973) EA 445,** the Court set out the procedure to be followed where an accused person pleads guilty. The charge and all its essential ingredients must be explained to the accused in a language that he understands; the accused’s own words admitting the charge must be recorded; the prosecution must thereafter state the facts; and the accused must be given an opportunity to dispute, explain or add to those facts before a conviction is entered. 4. The record shows the following : a). when the Appellant was first arraigned court on 16/11/2023 he pleaded “ si ukweli” ( Not true) to the main and the alternative charge. b). On 17/04/2024 the Appellant told the court he wanted to change his plea. The Magistrate recorded: *“ I have warned the Accused against change of plea”* Then she listed the matter for hearing on 30/04/2024. c). On 30/4/2024, the Appellant insisted on changing his plea. The record states that the court *has reminded the accused the seriousness of the offence, the potential sentence and the right to legal representation*. The charges were read to him and he responded: “Ni ukweli. I did it. The court referred him for a social inquiry report, and a mental assessment at Muranga level 5 hospital. d). The record of 16/7/2024 was for the next court appearance. The trial court magistrate recorded that she has seen a mental assessment report indicating that the Appellant was unfit to plead. she then referred the Appellant for mental treatment at Mathari hospital. e). On 12/2/2025, the court was informed that the Appellant had been certified fit to plead. The charges were read over again and the Appellant pleaded guilty. The facts were read to him at the next court appearance which was on 18/2/2025, and he confirmed the facts. He was convicted on his plea of guilt. f). A perusal of the record shows that indeed there is a report from mathari hospital showing that the Appellant had recovered and could go on with the case. The report is dated 28/10/2025 and is signed for DR. Rajab. 1. The Appellant contends that he was forced or advised to plead guilty. He has not said who forced or misadvised him. On the contrary, record further show that on 12/2/2025 after the receipt of the report from Mathare mental hospital, the prosecutor wanted to put the first witness on the stand, but the Appellant insisted on the charges being read again, and to which he pleaded guilty. 2. Further the facts were not read the same day. They were read on 18/2/2025 about a week later. The Appellant was now of fully sound mind. He also had a chance of almost a week to rethink his plea. The record demonstrates that the trial court had done everything and undertaken every step that was required of the court, to satisfy itself that the guilty plea was well informed and was consciously entered into. 3. Having carefully reviewed the record, I am satisfied that the plea was taken in strict compliance with the principles laid down in *Adan v Republic* (supra). The plea was therefore unequivocal. 4. Although the Appellant took issue with the right to be informed of the right to be represented by an Advocate he has not submitted on it. However, it suffices to state that on 30/4/2024, the record shows that the court informed him of his right to representation at the same time that the court was repeating the warning against guilty plea. 5. There was no denial to a right to the right to public hearing under Article 50(1) as the chance was given to him. The Appellant was given the chance about three times but he opted not to exercise it. Whether the Sentence was Lawful 1. The Appellant was charged with and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. 2. The particulars of the charge indicated that the complainant was eight (8) years old. Section 8(2) of the Sexual Offences Act provides that: *“A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”* 1. The sentence of life imprisonment imposed by the trial court was therefore based on the law, and consequently, this court has no reason to interfere with it. 2. The cited provisions of section 333(2) of the criminal procedure court was rendered irrelevant in the face of a life sentence that was imposed. 3. In the end, the entire Appeal fails. It is hereby dismissed, and the findings of the trial court upheld. Dated, signed and delivered at Isiolo , via *Microsoft teams* at Isiolo this 25th day of June , 2026. S. Chirchir Judge. In the presence of : Roba Katelo- Court Assistant