https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10080

Kerich v Republic (Criminal Appeal E004 of 2021) [2026] KEHC 10080 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEHC 10080 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Appeal E004 of 2021 PN Gichohi, J July 8, 2026 Between Benard Kipekemoi Kerich Appellant and Republic Respondent (Being an Appeal from the judgment of Hon B. Limo (SRM) I Nakuru Criminal SO Case No. 175 of 202o on 29th September, 2020) Judgment 1.The Appellant Bernard Kipekemoi Kerich was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8(2) of the Sexual Offences Act. The particulars are that on the 16th day of August, 202 at [Particulars Withheld] in Njoro sub County Committed an act of inserting penis into the vagina of CD a girl aged 11 years. 2.In the alternative he faced a charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. 3.He pleaded guilty to the main charge and was convicted and sentenced to serve 30 years imprisonment. 4.Aggrieved, he lodged the present appeal against both sentence and conviction raising the following grounds in Amended Grounds of Appeal filed on 29th April, 2025:-1.That the Appellant pleaded guilty in the instant case.2.That the Learned Magistrate erred in law and in fact when he convicted and sentenced the Appellant to 30 years imprisonment but failed to note that the plea was not unequivocal, the language was not clear, no caution was given to the appellant before pleading guilty thus the Appellant was prejudiced,3.To be present during the appeal hearing. 5.He prays that this Court quashes the conviction, sets aside the sentence and order his release. He further seeks that the Court re-evaluates the evidence tendered and make a fresh finding on both sentence and conviction and that the Court issues any other orders as may be just and expediate. 6.The Appeal was canvassed by way of written submissions. Appellant’s Submissions 7.The Appellant argues that he was to be arraigned in Court on 8th September, 2020 but he was not present though he was represented by an unknown person. He submits that the trial Court misdirected itself on the principles and procedures governing plea taking. In support of this argument, reliance is placed on Aden vs Republic [1973]EA 445 and Kariuki vs Republic [1984] eKLR 809 to further submit that the steps to be taken in plea taking were not adhered to. 8.He also contends the trial Court ought to have asked him the language he understood and to record it clearly. Reliance was placed in Joseph Bosire Ogao vs Republic [2010] eKLR where the Court found that the plea was not properly taken or that the Appellant understood every element of the charge. 9.The Appellant also submits that the he was not given caution before or after pleading guilty. According to the Appellant it was an omission that went to the to the prosecution’s case and relied in Njuki vs Republic [1990] KLR 334 which reemphasized caution in recording a plea of guilty and that the Court must satisfy itself that the accused understands every element of the charge and pleads guilty to every element unequivocally. 10.He maintains that the trial did not conform to Article 50 of the Constitution of as the proceedings were concluded within 15 days which was not adequate time to prepare his defence. Further, that the Court never assessed the evidence before it and that it was not enough for the court to merely mark the exhibits produced. 11.He also faults the trial Court for failing to note mitigating factors, failing to state that he was a first-time offender and due to his age, he ought to have received the least severe sentence. Respondent’s Submissions 12.Mr. Kihara for the Respondent relies on decision in Olel vs Republic [1989] eKLR to submit that where an accused person has pleaded guilty, the Court cannot interfere with the conviction but relook the sentence. 13.It is submitted that the Court of Appeal in Ombena vs Republic [1981] eKLR cited Adan v Republic [1973] EA 44 where the procedure for recording a plea of guilty was dealt with. It is argued that the trial Court complied with the set conditions and that no omission or commission has been disclosed. 14.On the sentence, it is submitted that the trial Court was guided by the prevalence of defilement cased and the need for deterrence. It also argued that the Appellant was not remorseful and that the trial Court opted to give a determinate sentence instead of a life sentence. Therefore, the sentence handed to him should not be disturbed. 15.As regards the Appellant’s contention that he was not warned of the repercussions of and the stiff sentence the Appellant would face in the event he pleaded guilty, the Respondent urges this Court to relook at the surrounding circumstances and come up with a reasoned judgment in light of this omission. 16.It is submitted that in even the Court finds that procedure for taking plea was omitted or if there were any prejudices caused to the Appellant, then a retrial of the matter would be in order if the Court finds it necessary. Analysis and determination 17.The Court has perused the trial Court’s record. Based on the grounds of appeal and the arguments by both parties, the broad issues for determination are :-1.Whether plea of guilty was unequivocal.2.Whether the sentence of 30 years imprisonment was justified. 18.On the first issue, the procedure of taking plea is well captured by both parties and as elaborated in Adan v Republic (supra). Further , Section 207 (2) of the Criminal Procedure Code provides that:-“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.” 19.Further, the Court of Appeal in Alexander Likoye Malika vs Republic [2015] KECA 764 (KLR) was of the view that:“May we, by way of commentary only remind that there is ordinarily no appeal against conviction resulting from a plea of guilty – See Section 348 of the Criminal Procedure Code which only permits an appeal regarding legality of sentence. 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.” 20.Based on the above, and on the appellant’s complaint that the language used was not clear; the guilty plea was unequivocal; and that the magistrate did not record as nearly as possible in his own words, the trial court record shows that on 15th September 2020 when the plea was taken, the charge was read out to the Appellant in a language that he understood and on asked whether he admitted the charge, he replied in Kiswahili and he is recorded to have responded "kweli”. 21.The Court then recorded: “a plea of guilty entered” and the prosecutor proceeded to read the statement the facts and further producing the exhibits. The Court then recorded that the Appellant stated that the facts were correct. 22.It is therefore clear that the language used was Kiswahili which the accused understood . He understood the charge and the facts as done in Kiswahili. 23.In regard to the issue that he was not cautioned as to repercussions of the said plea of guilt, it is true from the record that such caution was not issued on the Appellant. The Court of Appeal in Adan v Republic (supra) emphasized on the need to explain to the accused person the natural consequence of pleading guilty. 24.Further, the Court of Appeal in Wakianda v Republic [2016] KECA (KLR) opined thus:-“ 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. 25.The issue then is whether the Appellant was prejudiced by that omission. He argues that the case was hurried in that the proceedings too only 15 days which was not enough for him to prepare his defence. However, the record shows that the plea was firs attempted on 8/9/2020 but there was a problem with Zoom platform at the time casing the plea to be deferred to the following day. 26.It is further noted that on 9/9/2020, the plea was successfully taken and the charge was read to the Appellant in Kiswahili and he still admitted the charge by stating “ Kweli.” The Prosecution sought to give the facts on 14/9/2020, but the facts were deferred to 15/9/2020. He still admitted the charge. 27.Upon being treated as a first offender, he was given an opportunity to mitigate and he did so and it was as follows:- “ I pray for leniency of the court. I pray for forgiveness.” 28.The trial court called for a presentence report and the same was availed. According to that report dated 23/9/2020 by Rachel Musyimi , a Probation Officer based in Nakuru, the Appellant still expressed remorse. He regretted having committed the offence and once more, he sought forgiveness. 29.The Appellant was therefore clearly given an opportunity to express himself during plea, and in mitigation before sentence. That included the fact that he was aged 30 years even though the trial Court did not expressly say so in the sentence as it proceeded to sentence the Appellant to 30 years imprisonment. 30.In the circumstances herein, this Court is satisfied that the plea of guilty was unequivocal and failure to have a counsel or to be warned of consequences of pleading guilty to the charge did not prejudice the Appellant in any way. As regards the sentence, the Respondent herein urged the Court not to disturb it. That is not withstanding that the governing legislation dictates that the sentence permitted is life imprisonment. The conviction and sentence are therefore upheld. 31.It is noted that the trial court did not comply with Section 333 (2) of the Criminal Procedures Code which is in mandatory terms. 32.The record shows that the Appellant was arrested on 6th September 2020 and arraigned in court on 8th September 2020. The period spent in custody should be taken into account. 33.In conclusion, this Court issues the following Orders:-1.The conviction is upheld and the sentence affirmed.2.The sentence of 30 years imprisonment shall run from the date of arrest being 6th September, 2020.3.Right of Appeal 14 days. DATED AND SIGNED AT NAIROBI THIS 6TH DAY OF JULY, 2026. PATRICIA GICHOHIJUDGEDELIVERED AT NAKURU THIS 8TH DAY OF JULY 2026.………………………DR. JOSEPH SERGONJUDGE