https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10545

Njoki v Republic (Criminal Appeal E083 of 2025) [2026] KEHC 10545 (KLR) (1 July 2026) (Judgment) Neutral citation: [2026] KEHC 10545 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E083 of 2025 NIO Adagi, J July 1, 2026 Between Simon Kariuki Njoki Applicant and Republic Respondent Judgment 1.The Appellant Simon Kariuki Njoki, was charged with Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars are that on the 2 1 st December 2024 at Kayole market Manaja Location in Masinga Sub-county within Machakos County he intentionally caused his penis to penetrate the vagina of B.C (name withheld) aged 10 years. 2.In the alternative he was charged with committing an indecent act with a child contrary to Section 1 1(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on 2 1 st December 2024 at Kayole market, Manaja Location in Masinga Sub-county within Machakos County intentionally touched the vagina of B.C (name withheld) a child aged 10 years with his penis. 3.The Appellant was arraigned in court on 27/12/2024 and he pleaded not guilty to the charges. The matter was set down for hearing. The prosecution called 3 witnesses who testified and were cross examined by the Appellant. 4.On 26/8/2025 the Appellant requested the charges to be read over to him a fresh. The court warned the Appellant of the sentence and the Appellant insisted that he was ready to change plea. The Trial Court had the charges read over and explained to the Appellant in Kiswahili language which he understood well to which he responded "ni kweli” meaning “it is true”. The Trial Court recorded plea of guilty against the Appellant. The facts were read out to him and he responded in Kiswahili language "maelezo ni ukweli" meaning “the facts are true”. The Trial court convicted the Appellant on his own plea of guilty and sentenced him to life imprisonment on 26/8/2024. 5.Being dissatisfied with the Trial Court’s judgment on conviction and sentence the Appellant filed this instant Petition of Appeal dated 5th September 2025 to this court raising the following grounds:a.That the Learned Trial Magistrate erred in matters of law and fact by failing to find that key elements required to prove the offence charged were not proved to the requisite threshold as by law stipulated.b.That the Learned Trial Magistrate erred in matters of law and fact by failing to find that the prosecution case was tainted by material contradictions and unsafe to base a conviction.c.That the Learned Trial Magistrate erred in matters of law and fact by failing to consider that the Appellant was not provided with legal representation nor was Article 50 of the Constitution relating to fair hearing complied with.d.That the sentence of life imprisonment meted out on the Appellant was excessive and against the spirit of the rehabilitation and reintegration considering current developments in jurisprudence as regards sentencing. 6.The Appeal was canvassed by way of written submissions. The Appellant filed his submissions dated 18/02/2026 in support of the appeal and through which he raised further amended grounds of appeal. The Respondent filed submissions dated 19/05/2026 written by Ms. Agatha Abang in opposing the appeal. Analysis and Determination 6.This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of Okeno -vs- Republic (1972) EA 32 where it was stated as follows: -“An appellant 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 the 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 conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”. 6.Also, in Peter’s vs Sunday Post (1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses. 6.In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India Case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:-“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.” 6.In the case of Mwangi vs Republic [2004] eKLR 28. It was held as follows:“Any 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 have the appellate courts own decision on the evidence” 6.Having subjected the trial court’s proceedings to fresh and exhaustive examination, considered the trial court’s judgement, the grounds of appeal and the submissions of the parties, I find that the only issue for my determination is whether the appeal is meritorious. 6.The trial court’s record shows that on 26/8/2025 the Appellant requested the charges to be read over to him a fresh. The court warned the Appellant of the sentence and the Appellant insisted that he was ready to change plea. The Trial Court had the charges read over and explained to the Appellant in Kiswahili language which he understood well to which he responded "ni kweli” meaning “it is true”. The Trial Court recorded plea of guilty against the Appellant. The facts were read out to him and he responded in Kiswahili language "maelezo ni ukweli" meaning “the facts are true”. The Trial court convicted the Appellant on his own plea of guilty and sentenced him to life imprisonment. 6.The Appellant pleaded guilty to the charges and he therefore does not have a right of appeal except against sentence. Section 348 of the Criminal Procedure Code CAP 75 Laws of Kenya bars appeals from subordinate courts where an accused was convicted upon a plea of guilty except on the extent and legality of sentence. The said section provides as follows:-“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 and legality of the sentence.” 6.In the case of OLEL -VS- REPUBLIC [1989] KLR 444 the court held that:-“Where a plea is unequivocal, an appeal against conviction does not lie. Section 348 of the Criminal Procedure Code (cap 75) does not merely limit the right of appeal in such cases but bars it completely.” 6.The Appellant herein is therefore barred from challenging the conviction and his only recourse would therefore be to challenge the extent or legality of the sentence imposed on him by the trial court. 6.The Appellant has stated in his submissions that he was convinced and ill-advised by colleagues in the remand to go and plead guilty due to the small ration they were used to (little food which was not sufficient to him). With this, they asked him to change his initial plea of not guilty as they took advantage of him being an orphan who could not employ other means of survival. 6.The above clearly demonstrates that the Appellant’s change of plea was driven by ill-advice of his colleagues in remand and therefore he decided to change plea. I have considered the trial court’s proceedings on the Appellant’s change of plea and I am satisfied that the plea of guilty by the Appellant herein was taken in accordance with the procedure laid down in Adan -vs- Republic (1973) EA 446. 6.Accordingly, I find that the appeal herein lacks in merit and the same is dismissed in its entirety and I uphold both the conviction and the sentence of the trial court against the Appellant. 6.Right of appeal 14 days. This file is closed.It is so ordered. JUDGMENT DATED & SIGNED AT MACHAKOS THIS 1ST JULY 2026NOEL ADAGIJUDGEDELIVERED AT MACHAKOS VIA TEAMS THIS 1ST JULY 2026In the presence of :