https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9883

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL APPEAL NO. E088 OF 2025** **KAZUNGU BEJA SALIM………. …….………………………………………. APPELLANT** **VERSUS** **REPUBLIC ……………………………………………………………………. RESPONDENT** ***(Being an appeal against the Conviction and Sentence by Hon. J ONGONDO (SPM) in Malindi CMC (CR) Case No. E728 of 2024)*** **JUDGEMENT** 1. The appellant herein, Kazungu Beja Salim was charged on 14 October 2024 before the Chief Magistrate’s Court, Malindi with the offence of grievous harm contrary to section 234 of the *Penal Code.* Particulars of the offence were that on 1st May 2022 at Mere area in Malindi Sub-County within Kilifi County, he willfully and unlawfully did grievous harm to Mary Jefwa Kalama. He pleaded guilty, was conviction on his own plea of guilty and was sentenced to ten (10) years imprisonment. 2. Aggrieved, the appellant filed the present appealed where he raised the following grounds; 1. The trial court erred in both fact and law by failing to find that the plea of guilt was unequivocal. 2. The trial court erred in both fact and law by failing to find that the appellant was blackmailed by uniformed police officers into pleading guilty. 3. The trial court erred in both fact and law by failing to ask the appellant the language he understood and preferred to use for communication. 4. The trial court erred in both fact and law by failing to warn the appellant of the severity of the charges and consequences of pleading guilty. 5. The sentence meted out was harsh, excessive and did not consider the age of the appellant. 3. The appeal was heard by way of written submissions which both parties duly filed. The appellant submitted that he was 47 years old yet the trial court did not take into account his age in sentencing. That given his advanced age, it was improper for the trial court to issue a custodial sentence without considering alternatives such as fine or non-custodial sentence. 4. He contended that the plea of guilt was not equivocal. He submitted that from the record, the charge was read to him in English but the record does not indicate that the substance and every element of the charge was properly explained to him in a language that he understood. 5. He argued that at the time of his arrest, uniformed police officers coerced him to plead guilty on the promise that he would be released or placed on probation due to his advanced age. He submitted that the trial court erred by failing to inquire on the voluntariness of the appellant taking into account that he was a visibly elderly person. 6. He further submitted that the trial court did not ward him of the severity of the charge and consequences of pleading guilty. He cited the case of ***Paul Mutunga vs R (2006)*** where the court emphasized that where the accused pleads guilty to a serious offence, the court must be satisfied that he understands the charge and consequences of his plea, especially the likely sentence. 7. In conclusion, he submitted that the sentence was harsh and excessive in view of the fact that he was the first offender, elderly and unrepresented. He prayed that his appeal be allowed and he be acquitted or in the alternative, his sentence be reduced. 8. The respondent opposed the appeal and submitted that the first appellate court is required to re-visit the evidence tendered before the trial court afresh, evaluate it, analyze it and arrive at its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them. ***See Okeno vs Republic (1977) EALR 32*** and ***Mark Mose vs Republic (2013) eKLR***. 9. The respondent contended that having pleaded guilty, the appellant is precluded from filing appeal against the conviction by dint of Section 348 of the *Criminal Procedure Code*. That the only recourse available is a challenge on the legality of the sentence. The Respondent argued that the plea of guilty was unequivocal and hence an appeal against the conviction does not lie. The case of ***Olel vs Republic (1989) KLR 444*** was cited in support thereof. 10. It was the respondent’s case that the plea of guilty was properly recorded by the trial court and that section 207 (1) and (2) of the *Criminal Procedure Code* that prescribes the matter of recording a plea of guilty was complied with fully. The cases of ***Alexander Lukonye Malika vs Republic (2015) eKLR*** and ***Ombena vs Republic (1891) eKLR*** were cited in support of the proposition. 11. The respondent submitted that the guidelines set out by law as regarding admission of a plea of guilty were duly complied with and made reference to the trial court record at page 1 where the appellant said, ***“ni ukweli”*** as well as ***“maneno hayo ni ya ukweli”*** in response to the reading of the charge and particulars of the offence. 12. The respondent further submitted that there is nothing on record to show that the appellant mitigated in a way that points to a plea of not guilty or that he changed his plea. That he did not dispute the facts and clearly stated, ***“I am sorry I pray for leniency”*** in mitigation. It was further contended that the appellant was clearly aware of the grievous nature of the offence since the particulars were contained in the P3 form which was produced as exhibit 1. 13. On the extent of legality of the sentence, the respondent contended that the sentence meted out to the appellant was lawful and but lenient considering that Section 234 of the *Penal Code* prescribed life imprisonment as the maximum sentence. The court was urged to dismiss the appeal for lack of merit. ***Analysis and determination*** 1. This being the first appellate court, the court is duty bound to revisit the evidence tendered before the trial court, re-evaluate it, analyze it and arrive at its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them. ***See Okeno vs Republic (1977) EALR 32*** and ***Mark Mose vs Republic (2013) eKLR.*** 2. The court of appeal, in ***Kiilu & Another vs Republic [2005]1 KLR 174***, stated thus; “*An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”* 1. The appellant has challenged his plea of guilty on grounds that it was not equivocal, he was blackmailed by uniformed police officers into pleading guilty on the promise that he would get a non-custodial sentence, the charges and particulars were not read in a language that he understood and that he was not fore-warned of the severity of the charge and sentence. He also challenged the sentence on grounds that it was harsh, excessive and did not take into account his age among other factors. 2. Drawing from the above, the issues for determination are as follows; 1. Whether the plea of guilty was unequivocal 2. Whether the sentence was harsh and excessive ***Whether the plea of guilty 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 by a subordinate court, except as to the extent or legality of the sentence*.* 2. However, the court is enjoined to inquire into the plea and determine if it was unequivocal and can interfere with such a plea where it is established that the plea is imperfect, ambiguous or unfinished such that the trial court erred in treating it as a plea of guilty or accused person pleaded guilty as a result of mistake or misapprehension of the facts or where he has pleaded guilty for an offence not known to law. 3. In ***Alexander Lukoye Malika vs Republic [2015] eKLR,*** the court of appeal identified the situations in which a conviction based on a plea of guilty can be interfered as follows: - *“A court may only interfere with a situation where an accused person has pleaded guilty to a charge where the plea is imperfect, ambiguous or unfinished such that the trial court erred in treating it as a plea of guilty. Another situation is where an* *accused person pleaded guilty as a result of mistake or misapprehension of the facts. An appellate court may also interfere where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to law. Also where upon admitted facts the appellant could not in law have been convicted of the offence charged.”* 1. Section 207(1) and (2) of the *Criminal Procedure Code* prescribes the manner of recording plea 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. 1. Further the court of appeal in ***Adan vs republic [1973] EA 445***, laid down the steps which should be followed in taking plea, to wit; 1. *The charge and all essential ingredients of the offence are explained to the accused in his language or in a language he understands.* 2. *Where the accused’s own words in response to the charge are recorded and amount to admission, leading to a recording of a plea of guilty.* 3. *The facts are stated by the prosecutor and the accused is given an opportunity to dispute or explain the facts or to add any relevant facts.* 4. *If the accused does not agree with the facts or raises any question of his guilt his reply is recorded and change of plea entered.* 5. *If there is no change of plea a conviction is recorded and a statement of the facts relevant to sentence together with the accused’s reply are recorded.* 2. The trial court record shows that the appellant was charged on 14 October 2024 before the Chief Magistrate’s Court, Malindi with the offence of grievous harm contrary to section 234 of the *Penal Code.* All proceedings were interpreted in Kiswahili. The record indicates that the charge and every element thereof was stated by the court to the appellant in a language that he understands, who being asked whether he admits or denies the truth of the charge replies, ***“ni ukweli”.*** 3. The record further shows that the facts of the case were read by the prosecutor who also produced P3 Form filled at Malindi County hospital showing injuries as maim as well as the discharge summary. The appellant when called upon to plead to the particulars, answered, *“****maneno ni ya ukweli”*.** Thereafter, the record of proceedings shows that sentencing was differed to 31 October 2024 and proceedings adjourned. 4. On 31 October 2024, when the court reconvened, the appellant did not raise any issues concerning coercion by uniformed police officers or that he did not understand the nature of proceedings. Instead, he informed the court that he was interviewed by the probation officer who prepared and filed the Pre-Sentence Inquiry Report that was filed on the 31 October 2024. 5. The court has analyzed and evaluated the record of proceedings before the trial court and finds that the proceedings were conducted in a language that the appellant understood, being Kiswahili, that charge and every element were read and explained to him by the court, that he clearly understood and voluntarily pleaded to it. The facts of the case were stated in detail and the P3 form and discharge notes were also produced. These documents clearly showed the nature of injury inflicted by the appellant. He also confirmed them to be true. 6. The appellant submitted that he was not fore-warned of the severity of the charge and consequences of pleading guilty. The record shows that the facts of the case and the exhibits produced clearly showed that the victim suffered severe injury and grievous harm as a result of the attack by the appellant. The severity of the charge was apparent from the facts and documents produced in court and the trial court, in these circumstances was not required to warn the appellant further. Additionally, the appellant had 14 days from the date of plea to the date of sentencing to reconsider his plea but still maintain it. 7. The court has also considered the appellant’s allegation that he was coerced by police officers in uniform to plead guilty but finds no evidence to support the allegation. The appellant did not raise this issue in court to enable the trial court interrogate it. He has not provided any details as to which police officers blackmailed him and the nature of blackmail that he was subjected to. It was upon the appellant to at least raise the allegations of blackmail in the trial court either before or after plea or during sentencing. Instead, he pleaded for leniency in mitigation. The court finds no evidence to support these allegations. 8. Additionally, the court is not convinced that a 47-year-old is an elderly person. Even if he was elderly, the record as a whole clearly shows that the appellant understood the nature of proceedings, the charge he was facing and fully participated in the process until the end. The appellant’s case is hinged on procedural technicalities. This court is bound by Article 159 (2) (e) of the *Constitution* that sets guiding principles in the exercise of judicial authority which requires that justice be administered without undue regard to procedural technicalities. The court is satisfied that the legal requirement of recording a plea as prescribed in Section 207 (1) and (2) of the *Criminal Procedure Code* were fully complied with and the plea of guilty was unequivocal and is hereby upheld. ***Whether the sentence was harsh and excessive*** 1. Regarding the second issue, the appellant submitted that the sentence was harsh and excessive for failing to consider a non-custodial sentence or fine. The respondent on the other hand maintained that the sentence was lawful but lenient. 2. The appellant, having pleaded guilty, was sentenced to 10 years imprisonment. Section 234 of the Penal Code provides as follows regarding the offence of grievous harm; ***“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”*** 1. “Grievous harm” is defined under Section 4 of the Act to mean *any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense*; while “harm” means *any bodily hurt, disease or disorder whether permanent or temporary.* 2. Section 234 of the *Penal Code* sets the maximum sentence to be life imprisonment. However, the court has discretion to award any sentence not exceeding life imprisonment while taking into account circumstances of the case, nature of injury or harm caused, mitigating circumstances among other relevant factors. 3. Sentencing is an exercise of discretion by the trial court and an appellate court will not interfere with the said discretion unless it is established that it was not made judiciously. Thus, in ***Bernard Kimani Gacheru Vs. Republic (2002) eKLR*,** it was held: *“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.”* 1. The court has perused the record and finds that trial court considered the mitigation of the appellant as well as the pre-sentence report before sentencing. The evidence in the P3 form and discharge summary of the victim as captured in the pre-sentence report shows that the victim suffered permanent injuries, lost an eye permanently and carries the scars of the offence for life. This is made worse by the fact that the appellant is her husband whom she expected protection from. This court finds no reason to intervene. ***Final orders*** 1. In view of the above, the court makes the following orders; 1. The appeal lacks merit and is accordingly dismissed. 2. The sentence of 10 years imposed by the trial court is upheld. **Dated, signed and delivered virtually at Nairobi on this 2nd day of July 2026** **JOSEPH KIPKOECH BIOMDO** **JUDGE**