https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1569

Kela v Republic (Criminal Appeal E016 of 2024) [2026] KECA 1569 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1569 (KLR) Republic of Kenya In the Court of Appeal at Malindi Criminal Appeal E016 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 31, 2026 Between Justus Mbizi Kela alias Silvester Watie Kela Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 18th December 2023 in H.C.C.A No. E003 of 2022) Judgment 1.This is a second appeal from the judgment of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 18th December 2023 in Criminal Appeal No. E003 of 2022. The factual background of the appeal is that the appellant, Justus Mbizi Kela alias Silvester Watie Kela, was charged in the Principal Magistrate’s Court at Mpeketoni with the offence of defilement contrary to section 8(1) and (3) of the Sexual Offences Act, 2006. The appellant was also charged with the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, 2006. 2.When the appellant was arraigned in court on 5th January 2021to plead to the charges aforesaid, he pleaded guilty to the main charge. It is also noteworthy that the appellant elected to represent himself in the proceedings and waived his right to representation by a state-appointed counsel. 3.The trial Magistrate (Hon. P. E. Nabwana, RM) explained to the appellant the seriousness of the charge to which he had pleaded guilty and the severity of the sentence that would ordinarily follow. In response, the appellant maintained his guilty plea and, accordingly, the prosecution requested for a date to present the facts of the case and subsequent sentencing. 4.When the case came up for mention two days later to enable the prosecution to present the facts of the case, the appellant maintained his guilty plea. 5.The prosecution’s case was that, on 31st December 2020, the complainant, NSB, a child aged 15 years, had visited her aunt at [Particulars withheld] Village in Witu and was preparing to return home to Hola in preparation for school; that the appellant seduced the complainant and promised to marry her, vowing to take her to Hola later; that, on the nights of 31st December 2020 and 1st January 2021, the appellant spent the night with her at a neighbour’s place; that, on 2nd January 2021, they left for a friend’s place at Sokoro where he sexually penetrated the girl without protection for a whole night; that, on 3rd January 2021, the appellant took the complainant to a family member’s residence at Witu Town and thereafter escorted her to his residence the following day; and that that is when the complainant realised that the appellant was apparently married. 6.On the same day, members of the public surrounded the appellant’s house and forced him out; that he was subjected to mob justice before the area chief and a police officer rescued the appellant from the mob; and that he was taken to Witu Police Station where he was charged. The prosecution further told the court that the complainant was taken to Witu Health Centre for medical examination, which established that she had been penetrated and defiled. In conclusion, the prosecution produced the complainant’s treatment notes, P3 Form and an Age Assessment Report into evidence, thereby confirming her age as 15 years. 7.The appellant confirmed the statement of facts as read out by the prosecution and stated that: “Hayo maelezo ni kweli” – Facts are true. 8.Before mitigation, the prosecution informed the court that the appellant was serving a 9 months’ community service at the chief’s office for stealing a motorcycle, but that he had failed to attend to any of the works assigned to him. 9.In mitigation, the appellant told the trial court that he had not reported for community service and prayed for forgiveness; that he did not intend to commit the offence; and that he had a problem with his nerves since childhood, and that he had been beaten recently. He prayed for leniency, stating that he had a six months old child who he was raising. 10.At sentencing, the court noted that the appellant was granted a non-custodial sentence for stealing a motorcycle; that he had nevertheless failed to attend to the prescribed community service; and that he did not respect the rule of law. 11.The learned magistrate also noted that the appellant was deceptive to the complainant who was easily swayed by a lush promise of the future; that, as a married man, he deviously and knowingly avoided taking the girl to his house, but instead lured her to his friend’s place of abode, where he intentionally defiled her; that cases of adults taking advantage of girls in the Witu area were on the increase; that, since he had already pleaded guilty, the court found it fit to reduce his sentence and sentenced him to serve 15 years imprisonment despite the fact that the offence carried a mandatory minimum sentence of twenty (20) years. 12.Aggrieved, the appellant moved to the High Court on appeal on the grounds that the learned Magistrate failed to consider that he was a lay man in law; that his rights were prejudiced as he was not given time to prepare for his defence; and that the sentence was harsh and excessive. 13.In its judgment, the High Court (S. M. Githinji, J.) found that the plea taking was done in Swahili, a language that the appellant understood; that the appellant participated throughout the process, responding appropriately whenever he was required; that he chose not to have an advocate appointed by the State to represent him as he was clear and firm that he wanted to plead guilty; that the appellant “was lucky that the trial court gave him 15 years imprisonment”; that “he should be contented with the decision and just serve the meted sentence”; and that the sentence was appropriate. Accordingly, the court dismissed the appeal. 14.Still aggrieved, the appellant filed the instant appeal on the grounds that the learned Judge failed to: appreciate the provisions of Section 107 of the Evidence Act; consider that Sections 33, 77, 163 and 164 of the Evidence Act were violated; appreciate the appellant’s defence; and to consider that the sentence was manifestly harsh and excessive. 15.In support of the appeal, the appellant filed undated written submissions abandoning his appeal on conviction and opted to appeal only on his sentence. The appellant submitted that he was a married man with school-going children; that he was a remorseful first-time offender; and that he was suffering from a cardiac ailment and lacked proper medical attention while incarcerated. He urged us to substitute his sentence for a non-custodial sentence. 16.In his response, learned Principal Prosecution Counsel, Mr. Omariba Gichana, filed written submissions dated 27th November 2025. With regard to sentence, counsel cited this Court’s decision in Manyeso v Republic [2023] KECA 827 (KLR); and Wanjema v Republic [1971] EA 493, submitting that sentencing is the trial court’s discretion, and that this court cannot interfere with this discretion unless it is shown that that court passed an illegal sentence. He urged us to dismiss the appeal. 17.Our mandate on a second appeal as the one before us is confined to consideration of matters of law by dint of section 361 of the Criminal Procedure Code. In Karingo vs. Republic [1982] KLR 213, the Court stated:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.” 18.It is noteworthy that the appellant elected to abandon his appeal on conviction and opted to proceed with his appeal on sentence. It then follows that the singular ground of appeal before us is whether the sentence imposed was “manifestly harsh and excessive.” 19.Moreover, the Appellant pleaded guilty to the offence of defilement. Section 348 of the Criminal Procedure Code provides as follows:No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate Court, except as to the extent and legality of the sentence. 20.From the foregoing provision, it is clear that severity of a sentence is a matter of fact and that, therefore, this Court on second appeal will only interfere with a sentence if the same is unlawful. It is also trite that sentencing is purely the exercise of discretion of the trial court. This Court has also pronounced itself on its limited power to interfere with the discretion of the trial court in sentencing. For instance, in the case of Francis Nkunja Tharamba vs. Republic (2012) KECA 29 (KLR), the Court stated:“…sentencing is a discretionary act of the trial court even though the limits such as the maximum sentences and in some cases the minimum sentences are prescribed by law, nonetheless, as to the exact sentence to be pronounced upon a convicted person, the trial court has in most criminal cases, the discretion to decide. That being the case, in law, the appellate court should not intervene in such an exercise of discretion by an inferior court unless, it is demonstrated to it that the trial court has not exercised that discretion properly in that it has failed to consider matters it should have considered or that it has considered matters it should not have considered or that looking at the entire decision, it is plainly wrong. These are the situations in law where the appellate court can intervene in the trial court’s exercise of discretionary power such as that of sentencing. The next principle that the appellate court should adhere to when considering an appeal on sentence is that when the sentence is lawful, the appellate court should not interfere.” [Emphasis added] 21.In view of the foregoing, this Court declines to disturb the sentence meted on the appellant as affirmed by the High Court on 1st appeal and, consequently, this ground of appeal fails. 22.Having carefully considered the record of appeal, the impugned judgments of the two courts below, the rival submissions of the appellant and of the State Counsel, the cited authorities and the law, we can only conclude that the sentence meted on the appellant was lawful and by no means harsh or unjust. Consequently, we hereby order and direct that:a.The appellant’s appeal be and is hereby dismissed; andb.The judgment of the High Court of Kenya at Garsen (S. M. Githinji J.) dated 18th December 2023 in Criminal Appeal No. E003 of 2022 be and is hereby upheld. DATED AND DELIVERED AT MOMBASA THIS 31ST DAY OF JULY, 2026.A. K. MURGOR.............................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb..............................JUDGE OF APPEALG. W. NGENYE-MACHARIA.............................JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR