https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8022

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL APPEAL NO. E051 OF 2024 MOSES MATETE ….……………………………………….......... APPELLANT - VERSUS - REPUBLIC ……………….…………………………………….. RESPONDENT (Being an appeal from the conviction and sentence of Hon. L. N. Kiniale, SPM delivered on the 19/6/2024 in Nyando MCCR Case No. 456 of 2024) J U D G M E N T 1. MOSES MATERE ‘the appellant’ was on 19/6/2024 arraigned before Nyando Principal Magistrate’s Court with two counts. The first count was failing to protect a child from physical abuse contrary to section 13(1) as read with section 20 of the Children’s Act No. 8 of 2001. 2. It was alleged that on diverse dates between March, 2024 and 16/6/2024 in Kabuyi village, Kakola location in Nyando Sub-County within Kisumu County, being the father of H.M aged 3 years, the appellant wilfully failed to protect the said child from physical abuse namely torture and beatings. 3. The second count was infringing a child’s right to health care contrary to section 9 as read with section 20 of the Children’s Act. It was alleged that, on diverse dates between March, 2024 and 16/6/2024, in Kabuyi village, Page 1 of 4 Kakola location Nyando Sub-County within Kisumu County, being the father of the child H.M a child of 3 years, the appellant denied the child the right to health and medical care by not taking him to hospital. 4. The appellant admitted both counts. He together with his co-accused were warned of the seriousness of the offences but they maintained the plea of guilt. The appellant was sentenced to serve sentence of 5 years for each count. The sentences were to run consecutively. The sentence therefore amounted to a total of 10 years’ imprisonment. 5. Aggrieved by that conviction and sentence, the appellant lodged a Petition of Appeal dated 25/6/2024 wherein he raised a total of 6 grounds. They attacked both the conviction and sentence. I need not set out the said grounds here for reasons I would state later. Suffice it to state that section 378 of the Criminal Procedure Act bars any appeal on conviction out of own plea of guilt as follows: - “No appeal shall be allowed in the case of an accused person who had pleaded guilty and has been convicted on that plea by a Subordinate Court, except as to the extent of legality of the sentence.” 6. From the foregoing, it is clear that the plea of guilt was unequivocal. I would not have looked at those grounds which attacked the appellant’s Page 2 of 4 conviction. I would have only dealt with ground No. 6 which relates to sentence only. 7. However, I have looked at the charges brought against the appellant. He was charged on 19/6/2024. He was charged under the provisions of a non- existent law. The offences he faced were under sections 9, 13(1) and 20 of the Children’s Act, No. 8 of 2001. That law was repealed on 26/7/2022 when the new Children’s Act, Cap 141 Laws of Kenya came into operation. With the repeal, the provisions of the aforesaid Act ceased from operating. The new Act created offences but in different sections than as cited in the charge sheet. 8. The foregoing being the case, both the conviction and sentence cannot stand. I quash the conviction and set aside the sentence. 9. I have noted that the appellant has been in custody for nearly 2 years., 10 days’ shy. That is a very long time to serve an illegal sentence. That however will be a factor that may be considered by the next court if at all the prosecution finds that the appellant had committed any offence under the correct law and be liable to re-arraignment but subject to the right against double jeopardy. Page 3 of 4 10. Accordingly, the appeal is allowed. The conviction is quashed and sentence set aside. The appellant is to be set at liberty forthwith unless otherwise lawfully held. It is so decreed. DATED and DELIVERED at Kisumu this 5th day of June, 2026. A. MABEYA, FCI Arb JUDGE Page 4 of 4