https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12360

Kioko v Republic (Criminal Appeal E051 of 2025) [2026] KEHC 12360 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KEHC 12360 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E051 of 2025 JK Biomdo, J July 31, 2026 Between Bonface Musembi Kioko Appellant and Republic Respondent (Being an appeal against the Conviction and Sentence by Hon. P N Gesora (CM) in Makueni CMC (CR) Case No. E015 of 2023) Judgment 1.The appellant herein, Bonface Musembi Kioko was charged at the Makueni Chief Magistrate’s Court with the offence of rape contrary to section 3 (1) (a) (b) (c) as read with section 3 (3) of the Sexual Offences Act. Particulars of the offence were that on 16 July 2023 at around 0610 hours at [Particulars Withheld] village Kauthuni location Kathonzweni Sub-County within Makueni County, he intentionally and unlawfully caused his penis to penetrate the vagina of LMM without her consent and using force. He pleaded guilty, was conviction on his own plea of guilty and was sentenced to fifteen (15) years imprisonment. 2.Aggrieved, the appellant filed the present appealed where he raised the following grounds, urging the court the allow the appeal, quash the conviction and set aside the sentence;i.The trial court erred in both fact and law by failing to inform the appellant the substance of the charges in a language that he understood contrary to Section 77 (2) (b) & (f) and 198 (2) & (4) of the Criminal Procedure Code and Article 49 (1) (a) of the Constitution.ii.The trial court erred in both fact and law by convicting the him despite the fact that there was no evidence to show that the english language was interpreted to Kiswahili or the trial was conducted in a language that he understood.iii.The trial court erred in both fact and law by convicting him without any evidence of penetration.iv.The trial court erred in both fact and law by sentencing him without affording him an opportunity to mitigate contrary to Section 169, 216 and 329 of the Criminal Procedure Code. 3.The appeal was heard by way of written submissions which both parties duly filed. On the first ground, the appellant submitted that the trial court failed to ensure that the charges were read in a language that he understood and that there was no interpreter called to interprate the charges from English to Kiswahili. He argued that the trial court record shows that the language used was english instead of english/kiswahili. He cited the case of Albanus Mwasia Mutua vs Republic, Cr. App No. 20 of 2004 (unreported) to support his arguments. 4.He also submitted that penetration was not supported by medical evidence urging the court to find that the ingredient of penetration as defined under Section 2 of the Sexual Offences Act was not proved. 5.He further submitted that he was not afforded an opportunity to mitigate before sentencing contrary to section 216 of the Criminal Procedure Code. He prayed that his appeal be allowed and he be acquitted. 6.The respondent opposed the appeal and submitted that the plea of guilty was properly entered in accordance with section 207 of the Criminal Procedure Code, that the offence of rape that the appellant faced was duly provided for under Section 3 of the Sexual Offenses Act and that having pleaded of guilty, the appellant is prevented from challenging his conviction by dint of Section 348 of the Criminal Procedure Code. The case of Olel vs Republic (1989) KLR 44 (CA 417/1987) was cited in support thereof. The Respondent urged the court to dismiss the appeal for lack of merit. Analysis and determination 7.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, Mark Mose vs Republic (2013) eKLR and Kiilu & Another vs Republic [2005]1 KLR 174 . 8.The appellant has challenged his plea of guilty on grounds that the charges and proceedings were conducted in english, and not Kiswahili. He also contended that he was not afforded an opportunity to mitigate before sentence. 9.Having considered the charge, record of proceedings, sentence, appeal and submissions by the parties, I narrow down the issues for determination are as follows;i.Whether the plea of guilty was unequivocalii.Whether the appellant was denied an opportunity to mitigate and if so, what is the effect thereof. Whether the plea of guilty was unequivocal 10.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. 11.Noting that the appellant has challenged the plea of guilt, the court is enjoined to inquire into the plea and determine if it was unequivocal. It is now well established that a court can interfere with such a plea for various reason, such as 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. See Alexander Lukoye Malika vs Republic [2015] eKLR. 12.Section 207(1) and (2) of the Criminal Procedure Code provide that before recording plea of guilty, 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. 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. 13.The above principles were affirmed in the case of Adan vs republic [1973] EA 445, where the court down the steps which should be followed in taking plea as follows:i.The charge and all essential ingredients of the offence are explained to the accused in his language or in a language he understands.ii.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.iii.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.iv.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.v.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. 14.The record of proceedings shows that the appellant was arraigned and charged with the offence of rape contrary to Section section 3 (1) (a) (b) (c) as read with section 3 (3) of the Sexual Offences Act on 18 July 2023 before the Chief Magistrate’s Court, Makueni. He answered “true”. The facts of the case were read out and the treatment notes, P3 form and PRC form were produced as exhibits 1,2 & 3. He answered that the facts are true as stated. He was thereafter convicted on his own plea of guilt. All proceedings were conducted in english as per the record. 15.The appellant’s main contention is that the proceedings were not translated in Kiswahili. However, he has not pleaded or demonstrated that he did not understand English or was unable to follow the proceedings or that he was denied an opportunity to inform the court that he did not understand English. The fact that the proceedings are conducted in English and not translated in Kiswahili does not by itself render the trial unfair. Section 198 (4) of the Criminal Procedure Code provide that the language of a subordinate court shall be either english or kiswahili. It was upon the appellant to inform the court that he did not understand either language. The court finds no evidence to support the contention, which fails. Whether the appellant was denied an opportunity to mitigate and if so, what is the effect thereof 16.Turning to the second issue, the appellant submitted that he was not afforded an opportunity to mitigate. The record of proceedings shows that indeed the appellant was not given an opportunity to mitigate before sentencing. 17.In the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) the Supreme Court stated thus;“We are of the view that mitigation is an important congruent element of fair trial. The fact that mitigation is not expressly mentioned as a right in the constitution does not deprive it of its necessity and essence in the fair trail process”. 18.The right to mitigate is expressly stated in Section 216, 323 and 329 of the Criminal Procedure Code. However, pursuant to Section 323 of the CPC, the omission to give the appellant an opportunity to mitigate does not render the proceedings invalid. In the court’s view, the omission entitles the appellant to the least possible sentence provided by law. This reasoning finds solace in Article 50 (2) (p) of the Constitution which entitles an accused to the benefit of the least severe of the prescribed punishments for an offence. 19.The offence of rape carries a minimum sentence of ten (10) years imprisonment. Based on the reasoning above, the court considers this as the appropriate sentence in the circumstances. Final orders 20.In view of the above, the court makes the following orders;i.The appeal against conviction lacks merit and is accordingly dismissed.ii.The sentence of 15 years imprisonment is set aside and substituted with a sentence of 10 years imprisonment. 21.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 31ST DAY OF JULY 2026JOSEPH KIPKOECH BIOMDOJUDGE