https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11065

Wachira v Republic (Criminal Revision E025 of 2026) [2026] KEHC 11065 (KLR) (20 July 2026) (Ruling) Neutral citation: [2026] KEHC 11065 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Revision E025 of 2026 DKN Magare, J July 20, 2026 Between John Kariuki Wachira Applicant and Republic Respondent Ruling 1.This is a Ruling over an application by the Applicant seeking to revise the sentence meted out by Hon. Becky Cheloti (SPM) against him in Nyeri CMCC No. E380 of 2026. The applicant pleaded guilty to the charge of cutting down of forest produce without a license contrary to section 64(1)(a) as read with section 64(2) of the Forest Conservation and Management Act No. 24 of 2016. The said sections provide as follows:1.Except under a license or permit or a management agreement issued or entered into under this Act, no person shall, in a public or provisional forest-a.fell, cut, take, burn, injure or remove any forest produce;2.Any person who contravenes the provisions of subsection (1) of this section commits an offence and is liable on conviction to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment. 2.The court sentenced them to 2 years imprisonment on 2.4.2026. He had been arrested on 25.03.2026. They have been in custody for 4 months. Effectively, they have served the maximum sentence provided. Effectively, the applicants have already served the maximum sentence prescribed by law for the offence. When they appeared before me, they explained that they had not cut down any trees. Rather, they were collecting pieces of rotten wood lying on the ground for use as firewood. According to their account, they did not cut or damage any live trees. While these assertions do not affect the legality of their conviction, they are relevant in considering the proportionality of the sentence and the period already served. 3.The proceedings are rather interesting. The applicant and the co-accused appeared in court on 26.03.2026. The record indicates as follows:Before Hon. Becky Cheloti SPMS/C Ms. AkinyiC/A Mrs. JenifferACCD: PRESENTInter/Kiswahili/English/Kikuyu.First accused – It is trueSecond accused – It is true 4.It is not clear what they were answering to as the court does not indicate on the record whether the substance of the charge was read and in which language and whether the applicant and his accused were required to plea to the same. Section 207 of the Criminal Procedure Court sets out the process on how an accused is to be called upon to plead 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.(5)If the accused pleads-(a)that he has been previously convicted or acquitted on the same facts of the same offence; or(b)that he has obtained the President’s pardon for his offence, the court shall first try whether the plea is true or not, and if the court holds that the evidence adduced in support of the plea does not sustain it, or if it finds that the plea is false, the accused shall be required to plead to the charge. 5.There is no indication whether the substance of the charge was read. Secondly, there was no indication on the words the applicant used in answering the plea and in which language they were. Where an accused admits the truth of the charge otherwise than by a plea agreement, his admission should be recorded as nearly as possible in the words used by him. What is indicated is “it is true.” The language used is not indicated. The question they were answering is not indicated and the language they answered in. It is not enough to list languages, Kiswahili/English/kikuyu. The language used by the court and an accused person must be indicated. If there was any interpretation, the same must be indicated and the person interpreting. 6.Thirdly, the words it is true are not an admission of guilt. Does it mean, it is true they are charged or the substance of the charge is true? A plea must be unequivocal. In the case of Ombena v Republic [1981] KECA 28 (KLR), the court of appeal [Law, Miller & Potter JJA] held as follows as regards a plea of guilty:The appellant’s third ground is that the magistrate did not hear and record the facts of the case before convicting them. In Adan v Republic [1973] EA 445, the Court of Appeal laid down in the simplest and plainest terms the manner in which pleas of guilty should be recorded and the steps which should be followed. It is appropriate to set out the holding in full —“Held:(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.”In this case it is not certain that the prosecutor stated the facts, or that the appellants were given an opportunity to dispute or explain the facts or to add any relevant facts. The bald record that the prosecutor said “Facts are as per charge sheets”, and that the charge was read over and explained a second time, is not in our view sufficient to enable us to be satisfied that the pleas were unequivocal. In the Adan case the court said, at p 447:“The statement of facts serves two purposes: it enables the magistrate to satisfy himself that the plea of guilty was really unequivocal and that the accused has no defence and it gives the magistrate the basic material on which to assess sentence. It not infrequently happens that an accused, after hearing the statement of facts, disputes some particular fact or alleges some additional fact, showing that he did not really understand the position when he pleaded guilty: it is for this reason that it is essential for the statement of facts to precede the conviction.” 7.The essence of a plea of guilty was discussed at length in the case of Wakianda v Republic [2016] KECA 181 (KLR), where the court of appeal [PN Waki, RN Nambuye & PO Kiage, JJA] posited as follows:Given all the safeguards available to an accused person through the process of trial, the entry of a plea of guilty presents a rare absolute capitulation; a throwing in of the towel and a giving of a walkover to the prosecution and often at great cost. A conviction comes with its consequences of varying gravity. Thus it is that the courts, at any rate appellate courts, would not accept a plea of guilty unless satisfied that the same has been entered consciously, freely and in clear and unambiguous terms. The process of ensuring this was well-captured in the oft-cited case of Adan v Republic (supra) and has been followed in many cases after it. See: Lusiti v Republic [1976-80] 1 KLR 585;Kariuki v Republic [1984] KLR 809.13.The beginning point of ensuring that the accused person has entered into a free and conscious plea of guilty is being satisfied that he understands the proceedings and that he in particular understands the charge that is facing him. Indeed, the court taking the plea is required to read and explain to the accused the charge and all the ingredients in the accused person's language or a language he understands. In the instant case, the record reads thus;“Court: The substance of the charge(s) and every element thereof has been stated by the court to the accused in a language that he understands who being asked whether he admits or denies the truth of the charge replies in Kiswahili:- “It is true.”14.With respect, we find this disturbing. It seems to us that this is part of a template used by courts at plea taking. That is why it speaks of “charge(s)” when there was a single charge and the rather odd “in a language he understands”, when it is more normal and logical to simply state the language used. This smacks of a mere going through the motions, a recital of ritual. While that may not much matter when the plea entered is one of not guilty followed by a trial with all its attendant safeguards, it assumes a critical dimension when the plea is one of guilty and leads to conviction.15.We think that it is good practice for the specific language used to state the elements of the charge be specifically stated. That should be established by specifically asking the accused what language he understands, and recording his answer before either using the language he mentions or ensuring a translator is present to convey the proceedings to him in the chosen language. We also think that the elements of the offence are not complete if the sentence, especially if it is a severe and mandatory sentence, is not brought to the attention of the accused person. One surely ought to know the consequences of his virtual waiver of his trial rights that the Constitution guarantees him. That did not occur here and yet the appellant was unrepresented calling upon the trial court to be particularly solicitous of his welfare. The officer presiding is not to be a mere umpire aloofly observing the proceedings. He is the protector, guarantor and educator of the process ensuring that an unrepresented accused person is not lost at sea in the maze of the often- intimidating judicial process.16.We are not satisfied that the appellant herein, to use the phraseology of Lusiti v Republic (supra) “wished to admit without any qualification each and every essential ingredient of the charge”. The fact that he had a history of psychiatric challenges only goes to add to the possibility of equivocation but we shall not explore the issue further in view of what we shall shortly state. 8.This brings us to the fourth disturbing issue, that is, the reading of facts. From the record facts were not read. It was indicated as ‘facts as per the charge sheet.’ Section 207 provides that the court may permit or require the complainant to outline to the court the facts upon which the charge is founded. Thus, it must be that the facts must be read. The charge sheet only contains the substance of the accusation of legal breach and not facts. In the case of Albina Suzan Mwema v Republic [2020] KEHC 6563 (KLR), G.W.Ngenye-macharia J as she then was posited as follows:In the case of Judy Nkirote v Republic [2013]eKLR the learned Judge stated as follows:“At the time the statements of facts are read by the prosecution and before the accused person is required to plead to those facts the court has a judicial role to play of considering the facts stated by the prosecution and determining whether those facts as read disclose the offence charged, and whether the facts also support the offence charged. If the particulars of the facts led by the prosecution do not support the offence charged or where they do not disclose the offence charged, the court should reject the charge under section 89(5) of the Criminal Procedure Code. A court cannot exercise that discretion if no facts are led by the prosecution. The court will not also be able to explain the facts to the accused if no facts are led by the prosecution.In the instant case after the charge was explained to the Appellant the prosecution did not give any facts but stated “facts as per the charge sheet”. At that juncture what the learned trial magistrate ought to have done was to enter a plea of not guilty and set down the case for hearing in order to give the prosecution an opportunity to call evidence out of which the facts of the case would be derived. A conviction could not and cannot result out of a plea to a charge alone where no facts are led.”8.Similarly in this case, it was required that the prosecution read out the facts of the case. This was not however adhered to. As guided by the sister court in Judy Nkirote V R (Supra) the court was therefore duty bound to enter a not guilty verdict. Instead, the court proceeded to sentence the Appellant. The Appellant was no doubt prejudiced. I then hold that the failure by the prosecution to adhere to the requirements of Section 207(2) of the Criminal Procedure Code was fatal to the case. I now grapple with the question of whether the case is ripe for a retrial.9.The then East Africa Court of Appeal in Ahmed Sumar V Republic[1964] EA 481 at page 483 stated as follows:“It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not, in our view, follow that a retrial should be ordered" 9.All said and done the plea was equivocal. It cannot be allowed to stand. It is therefore set aside. It is irrelevant, whether this was the linchpin of the applicant’s case. Once an illegality is noted on the file, this court has jurisdiction to deal with the same, under article 165(6) and (7) of the constitution. They provide as follows:(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice. 10.The plea being a nullity cannot be allowed in the interest of administration of justice. In Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169, Lord Denning delivering the opinion of the Privy Council at page 1172 (1) said, in regard to a nullity in law:“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” 11.The next question is to determine whether the court will order a retrial. In the case of Khalid & 16 others v Attorney General & 2 others (Application 32 of 2019) [2020] KESC 30 (KLR) (4 September 2020) (Ruling), the Supreme court DK Maraga, CJ & P, PM Mwilu, DCJ & V-P, Mk Ibrahim, SC Wanjala & NS Ndungu, SCJJ stated as doth: -Another principle in the de novo hearing is that it should not be taken as an opportunity to fill in gaps noted during the hearing by bringing a new set of evidence for the repeat trial. This is because a de novo hearing is a continuation of a trial and not a second trial. This was held in Indian Supreme Court case of Ajay Kumar Ghoshal etc. Vs. State of Bihar & ANR. [Criminal Appeal Nos. 119-122 of 2017 “A'de novo trial' or retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. 23. Also, in Mohd. Hussain Julkar Ali vs. State (Govt. of NCT of Delhi)(2012) 9 SCC 408, it was held: -“A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice.” 12.A retrial is ordered if it is not prejudicial to the Appellant and if the interest of justice demands so. The Applicant has served a substantial part of the sentence. In other words, even if the applicants were found guilty, and sentenced properly, the sentence that will be meted out cannot exceed the period they have been in custody. This is for a good reason. If they plead guilty, at least one third of the sentence is gone. They were first offenders, the logs were worth Ksh. 10,000/=. There are no circumstances where they could be sentenced to more than 4 months. Even if they were sentenced to the maximum sentence, only two months are remaining to the maximum sentence. 13.It is not fair to return them for prosecution which will not result in further punishment as more than 2/3 of the sentence has been served. There were no aggravating circumstances showing that in any case the applicant could have been sentenced to the maximum sentence. In the case of Karimi v Republic (Criminal Appeal 16 of 2014) [2016] KECA 812 (KLR), the Court of Appeal [RN Nambuye, MK Koome, JJA, as then they were & PO Kiage, JA] stated as follows: -“Mr Kaigai had implored us to order a re-trial in view of the overwhelming evidence against the appellant. We take note of the fact that the appellant was a first offender; the minimum sentence provided for the offence is 10 years although he was sentenced to 15 years. The appellant has served about 5 years out of the said sentence and in our view; a retrial may be prejudicial to him and may not serve the interest of justice.” 14.It is also noted that the sentence meted out was illegal and there was no basis for sentencing the applicant to 2 years when the maximum sentence is Ksh. 100,000/= or a period not exceeding 6 months. I decline to order a retrial. 15.In the circumstances, the conviction is untenable. I allow the appeal and set aside the conviction and sentence. In lieu thereof, the Applicant is set at liberty unless otherwise lawfully held. Determination 16.I therefore make the following orders: -a.The application for revision is merited and is allowed.b.The sentence meted out was illegal and is therefore set aside.c.The conviction was on an equivocal plea of guilty and it is therefore set aside.d.The court declines to order a retrial as the applicant has served a substantial part of the maximum sentence.e.The applicant is set at liberty forthwith unless otherwise lawfully held.f.A copy of this ruling be served on the trial court by the Deputy Registrar of this court.g.This file is closed. DELIVERED, DATED AND SIGNED AT NYERI THIS 20TH DAY OF JULY, THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX. RULING DELIVERED EXTEMPORE, PHYSICALLY IN COURt.KIZITO MAGAREJUDGEIn the presence of:-Pro se Applicant presentMr. Kihara for the RespondentCourt Assistant – Timothy