https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9032

Mataro & 15 others v Republic & 2 others (Criminal Revision E024 of 2026) [2026] KEHC 9032 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 9032 (KLR) Republic of Kenya In the High Court at Homa Bay Criminal Revision E024 of 2026 JR Karanja, J June 19, 2026 Between Mwita Mataro 1st Applicant Emmanuel Mwita 2nd Applicant Daudi Roga 3rd Applicant Juma Paulo 4th Applicant Meshack Kabega 5th Applicant Maroa Nyambari 6th Applicant Charles Audi 7th Applicant Emmanuel Mosongo 8th Applicant Protus Marao 9th Applicant Arnold Mwita 10th Applicant Maroa Siboga 11th Applicant Boniface Michael 12th Applicant Wambua Mahere 13th Applicant Thomas Otieno 14th Applicant Jacky Juma 15th Applicant Dismas George 16th Applicant and Republic 1st Respondent Officer in Charge of Oyugis Police Station 2nd Respondent Office of Director of Public Prosecutions 3rd Respondent (FROM ORIGINAL CONVICTION AND SENTENCING IN HCCR REV.NO.E172 OF 2026 PRINCIPAL MAGISTRATE’S COURT AT OYUGIS. AT HOMABAY) Ruling 1The sixteen (16) applicants appeared before the Resident Magistrate at Oyugis facing a charge of unlawfully being present in Kenya, contrary to Section 53(1)(j)(2) of the Kenya Citizenship and Immigration Act, 2011, in that on the 20th May 2026 at Kowidi – Karachuonyo South, Homabay county they were found to be unlawfully present in Kenya. 2.On the 22nd May 2026, the applicants pleaded guilty to the charge. The facts of the case were narrated to them by the prosecution after which the defence counsel (M/s Wabwire) seemingly commenced mitigating on their behalf with a rejoinder from the prosecution (Kipyego) reiterating that the accused people were not able to provide any visas or pass upon being called to do so. 3.The trial court then convicted the accused on their own plea of guilty and sentenced them to pay a fine of kshs. 50,000/- each, in default to serve six(6) months imprisonment with an order that the accused be deported to Tanzania after payment of the fine or serving the imprisonment term. 4.The accused were given Fourteen (14) days, to appeal, but they did not. Instead, they filed the present application vide the Notice of Motion dated 26th May 2026 primarily seeking a review of the sentence and orders made against them on the basis of the grounds set out in the Notice of Motion as buttressed by the averments in the supporting affidavit dated 26th May 2026, deporned by the first applicant, Mwita Mataro, on his own behalf and that of all the other applicants. 5.At the hearing of the application, Learned counsel, Mr. Bunde, appeared for the applicants and submitted that the applicants are Tanzanians and were in Kenya for a period of about three(3) months undertaking casual labour and being members of the East Africa Community were allowed free movement within the East Africa Community territories. 6.Counsel, further submitted that the applicants/accused did not commit any offence and after being arrested on a Wednesday and taken to court on a Friday their constitutional right of being taken to court within twenty four (24) hours after arrest was violated. That, the trial court instead of making a repatriation order made a deportation order against the applicants without necessary jurisdiction. 7.Counsel, urged the court to exercise its powers of revision and review the impugned decision and orders of the trial court in favour of the applicants. 8.The state/respondent through the learned prosecution counsel Ms Oduor, opposed the application and submitted that the applicants being Tanzanian citizens were illegally found in Oyugis and were arrested. They were accordingly charged in court and pleaded guilty after which they were fined and an order of deportation made against them. 9.It was further submitted by the prosecution counsel that the applicants contravened Kenyan Law. They did not say that they were in the country legally or that they were permitted to carry out their activities in Kenya. It was thus contended that the application is frivolous and further that the applicants were subject to the law and could not be let free even if they were held in custody beyond the prescribed time. 10.The learned prosecution counsel also contended that in any event, these proceedings were not the right forum to allege breach of constitutional rights. That, the present application is unmerited and ought to be dismissed. 11.The applicants invoked several provisions of the law under the Kenya Citizenship and Importation Act, the Criminal Procedure Code, the Evidence Act, the East Africa Community Common Market Protocol and the Constitution of Kenya, yet the relevant and applicable provision of the Law for exercise of this courts revisionary powers is essentially Section 362 of the Criminal procedure Code which provides that:-“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purposes of satisfying itself as to the correctness and legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court”. 12.The powers of the High court on revision are provided for under Section 364 of the Criminal Procedure Code. Section 1(a) of the provision provides that:-“(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders or which otherwise comes to its knowledge, the High court may (a) in the case of a conviction exercise any of the powers conferred on it as a court of appeal by section 354, 357 and 358 and may enhance the sentence”. 13.This court called for the lower court record by dint of the present application which clearly raises issues suitable for an appeal rather than a revision but which may nonetheless impact on the proceedings before the lower court from which the impugned sentence and order emanated. The propriety or impropriety of the proceedings are as good as the propriety or impropriety of the final out come of a dispute such that if the proceedings were improper, then the outcome would invariably be improper, akin to “What is good for the goose is good for the gander”. 32.The issue arising for determination in this matter is whether satisfactory grounds for revision of the impugned sentence and orders exist particularly with regard to the legality and appropriateness of the procedure applied by the trial court in arriving at the sentence and orders during plea taking. 33.The question would be, was the conviction of the applicants upon a plea of guilty proper and lawful. 34.A perusal by this court of the proceedings of the trial court during plea taking shows that the procedure undertaken was highly irregular and completely incompatible and contrary to the procedure established by the East African Court of Appeal in the case of Adan Vs Republic (1973) EA 445. 35.In effect, the appeal court established strict and mandatory procedure that a trial court must follow when taking a guilty plea. This is meant to safeguard the rights of the accused by ensuring that convictions based on guilty pleas are only entered when the admission of guilt is completely unequivocal and free from any procedural errors or mistakes which may nullify the plea of guilt. 36.Thus, the procedure laid out in Adan Vs Republic (Supra) provides as follows:-“(i)The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;(ii)The accuseds’ own words should be recorded and if they are an admission, a plea of guilty should be recorded;(iii)The prosecution should then immediately state the facts and the accused should be 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 raise any questions of his guilt his reply must be recorded and change of plea entered;(v)If there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accuseds’ reply should be recorded”. 37.The foregoing procedure was not strictly adhered to by the trial court during plea taking and in particular steps (iii)(iv) and (v) above. After the facts were read over to the applicants, they were not given an opportunity to dispute or explain the facts or to add any relevant facts. They were not even given an opportunity to agree or disagree with the facts yet the trial court proceeded straight to convict them on their plea of guilty. 38.It was not known whether or not there was a change of plea, neither did the trial court record a statement of the facts relevant to sentence with the accused’s reply. 39.In sum, the procedure adopted by the trial court during plea taking process was improper and defective. 40.Consequently, the applicants’ conviction and all consequential orders cannot stand and are hereby quashed and set aside. It is to that extent that the present application is meritable. 41.The applicants shall be released and set at liberty as there was no request from the respondent for a retrial of the case and if they paid the fine imposed on each one of them the same shall be refunded to them.Ordered accordingly. DATED AND DELIVERED AND THIS 19TH DAY OF JUNE 2026__________________________________J.R. KARANJAHJUDGE