Onyango v Republic (Criminal Appeal E060 of 2024) [2026] KEHC 7586 (KLR) (29 May 2026) (Judgment)

Onyango v Republic (Criminal Appeal E060 of 2024) [2026] KEHC 7586 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEHC 7586 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E060 of 2024 LM Wachira, J May 29, 2026 Between Justus Omondi Onyango Appellant and Republic Respondent (Being an appeal from the original conviction and sentence of Hon. J.M. Wekesa (SPM) delivered on 18th July 2024 in Kisumu criminal case No. E464 of 2024) Judgment 1.This appeal arises from Kisumu criminal case No. E464 of 2024 where the Appellant herein Justus Omondi Onyango was charged with the offence of Breaking into Building and Committing a felony contrary to Section 306 of the Penal Code. The particulars were that on diverse dates between 17th and 22nd June 2024, at Ahero Township, Kakola Sublocation, in Nyando subcounty within Kisumu County, the Appellant broke and entered into a building namely Marvelon Hotel and Accommodation and stole from therein the items listed, being 26 Mattresses of 4x6 inches, 1 HP Computer, 6 Duvets, 7 sufurias, 3 tables 6 wooden chairs, 12 metallic chair, 1 safaricom internet gadget, 7 empty crates of beer and 6 empty crates of soda all valued at Kshs 372,000/- the property of Julius Aguko. 2.There was an alternative Count of Handling stolen goods contrary to Section 322 (1) (2) of the Penal Code. The particulars were that on 22nd June, 2024 at Ahero Township, Kakola Sublocation, in Nyando Subcounty within Kisumu County, the Appellant, otherwise than in the course of stealing, dishonestly retained 1 Mattress of 4x6 inches blue in colour valued at Kshs.3,500/- knowing or having reason to believe the same to be stolen property. 3.The charge was read to the Appellant on 24th June 2024 and he pleaded guilty to the main charge of Breaking into a building and committing a felony. He was convicted on his own plea of guilty and sentenced to 4 years’ imprisonment. The Appeal 4.The appellant has appealed against both the conviction and sentence of 4 (four) years imprisonment on the following homemade grounds:- 1.That the learned Magistrate erred both in law and in fact by convicting and sentencing the Appellant without warning him of the dangers of pleading guilty. 2.That the learned Magistrate erred both in law and in fact by imposing a custodial sentence without ordering for a presentence report or seeking an opinion of the complainant and without considering other forms of alternative dispute resolution mechanisms and other sentencing options which include Non-custodial sentences which facilitate mediation. 3.He therefore sought to have the conviction quashed and the sentence set aside and he be sent back for retrial. Submission 5.The appeal was canvassed by way of written submissions. In his submissions the Appellant gives same grounds. That he was not warned of the dangers of pleading guilty which violates Article 50 of the Constitution. That he is a calm man when not intoxicated with alcohol. That the Court did not call for a presentence report which would have shown that he was fighting for the family property which the complainant has been occupying without paying rent. He pleaded that the court sets aside the conviction and allows him to go for a retrial. 6.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 18th June 2024 in a language he understood which was Dholuo 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. 7.On the question of presentence report, the State submitted that indeed a presentence report was called for and it was availed to the Court on the 18th July 2024, which was almost a month later. The court therefore had an opportunity to see the report before the sentence was meted out. 8.The Respondent’s submission is that in view of the provisions of Section 306 (a) of the Penal Code, which provides that “ A person who breaks and enters a building……………….is guilty of a felony and liable to 7 years imprisonment” the sentence herein is appropriate in the circumstances. Duty of the Court 9.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 during the trial to be able to gauge his 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 – vrs Republic[1972]E A 32. Determination 10.This appeal arises out of a plea of guilty to the charge of breaking into a building and committing a felony. 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. 11.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. 12.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.” 13.In this particular Appeal from the original record and the submissions the charge was read and explained to the Appellant in Dholuo which is his language. 14.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.” 15.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. 16.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 correct.” He therefore had understood what had been read to him and translated to Dholuo and that is why he was able to respond. This kind of response is unequivocal. 17.The Appellant has raised the issue of the court having not called for a presentence Report. From the onset, a presentence report is desirable. However, it is not mandatory for the court to always call for the report in every case. Criminal trials are governed by rules of procedure and not the desire to ask the complainant and the family of an accused what they feel about the matter. 18.Be that as it may, there was a Presentence Report that was called for and the trial Magistrate considered the same before meting out the sentence. 19.And on the argument that the sentence is excessive, Section 306 (a) of the Penal Code sets maximum sentence for the offence of breaking and Stealing, which is 7 years. The learned trial Magistrate applied her discretion and sentenced the Appellant to 4 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. 20.For the reasons given above, I find no merit in the Appellant’s appeal on both conviction and sentence. The appeal be and is hereby dismissed in its entirety. Right of appeal within 14 days from today. It is so ordered. JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT NAIROBI THIS 29TH DAY OF MAY 2026....................................L.M. WACHIRAJUDGEIn the Presence of:Kevin – Court assistantsAppellant – Present in person…………………………………- for the Respondent/State