https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9790

Nzai v Republic (Criminal Appeal E068 of 2024) [2026] KEHC 9790 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9790 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E068 of 2024 JK Biomdo, J July 2, 2026 Between Mumba Nzai Appellant and Republic Respondent (Being an appeal against the sentence by Hon. S D Sitati (RM) in Kilifi CMC (SO) Case No. E062 of 2021) Judgment 1.The appellant herein, Mumba Nzai was charged before the Chief Magistrate’s Court, Kilifi with the offence of Incest contrary to section 20 (1) of the Sexual Offences Act, No. 3 of 2006. Particulars of the offence were that on 5 July 2021 at around 1700 hours at [Particulars Withheld] Sub Location, [Particulars Withheld] Location in Ganze Sub-County within Kilifi County caused his genital organ namely penis to penetrate the genital organs namely vagina of L.K.S a child aged 5 years whom to his knowledge is daughter to his elder brother Shida Charo alias Randu. 2.He was also charged with an alternative Charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, No. 3 of 2006 with particulars stating that on 5 July 2021 at around 1700 hours at [Particulars Withheld] Sub Location, [Particulars Withheld] Location in Ganze Sub-County within Kilifi County, willfully and intentionally touched the genital organ namely of LKS a child aged 5 years with his genital organ namely penis. 3.The appellant was arraigned on 12 July 2021 and pleaded not guilty. The trial was set down for hearing where PW1 testified on 8 October 2021. During cross examination, the appellant said he was sorry, asked for forgiveness and requested that the case be referred for conciliation. The trial court interpreted this to mean a change of plea and read out the charges afresh to the appellant who pleaded guilty. The court then read the particulars of the offence and the appellant confirmed they were true. He was then convicted on his own plea of guilty and sentenced to life imprisonment after mitigation. 4.Aggrieved, the appellant filed the present where he raised the following grounds;i.The trial court erred in both fact and law by failing to consider his mitigation.ii.The trial court erred in both fact and law by construing section 20 (1) of the Sexual Offences Act as prescribing a minimum mandatory sentence. 5.The appeal was heard by way of written submissions which both parties duly filed. On the first ground, the appellant challenged the award of life imprisonment by submitting that the trial court did not take into account his mitigation before passing sentence. He averred that he changed his initial plea of not guilty with that of guilty after realizing his mistake. He submitted that he pleaded for forgiveness, he was a first offender who is upright, he was 27 years old hence still young and that the entire incident was an accident which he will not repeat. He made reference to Sections 216 and 329 of the Criminal Procedure Code that enjoins a court to consider mitigation before passing sentence to support his arguments. He also cited the Sentencing Policy Guidelines that require courts to afford parties an opportunity before passing sentence to buttress is submissions. 6.On the second ground, the appellant submitted that the trial court erred by construing Section 20 (1) of the Sexual Offences Act as prescribing a mandatory minimum sentence of life imprisonment. He contended that the wording of the said section, being “shall be liable to life imprisonment” connotes a maximum penalty and not a mandatory penalty. He cited the case of Arthur Muya vs R (2015) eKLR V12 where the court held that the words “shall be liable to” do not in their ordinary meaning require the imposition of the stated penalty but merely expressed the stated penalty which may be imposed at the time with discretion of the court. He also cited the case of D.W.M vs R (2016) eKLR where the court held that the wording of section 20 (1) of the Sexual Offences Act means imprisonment for life is the maximum sentence under the section and the court had discretion to impose a lesser sentence. 7.He argued that based on the misconstruction of the law, the trial court failed to consider his mitigation in that having pleaded guilty and being a first offender, he was entitled to a lesser sentence than the maximum set. He urged the court to reconsider the sentence and reduce it. 8.The Respondent opposed the appeal and reiterated that having pleaded guilty, the appellant is precluded from filing an appeal against the conviction by dint of Section 348 of the Criminal Procedure Code. That the only recourse available is a challenge on the legality of the sentence. The Respondent argued that the plea of guilty was unequivocal and hence an appeal against the conviction does not lie. The case of Olel vs R (1989) KLR 444 was cited in support thereof. 9.It was the Respondent’s case that the plea of guilty was properly recorded by the trial court and that section 207 (1) and (2) of the Criminal Procedure Code that prescribes the matter of recording a plea of guilty was complied with fully. The cases of Alexander Lukonye Malika vs R (2015) eKLR and Ombena vs R (1891) eKLR were cited in support of the proposition. It was pointed out that the appellant was accorded an opportunity to dispute or explain the facts as well as mitigate before sentencing. 10.On the extent of legality of the sentence, the Respondent cited the case of Muruatetu and another vs R; Katiba Institute & 4 others (Amicus Curiae) (2021) KESC 31 (KLR) where the Supreme Court held, inter alia, that the decision in the case did not invalidate mandatory maximum sentences in the Penal Code, Sexual Offence Act or any other law to support their contention that the sentence meted out to the appellant was lawful and any other sentence would be illegal. They urged the court to dismiss the appeal for lack of merit. Analysis and determination 11.The appellant is challenging his sentence as stated herein above. In an appeal against sentence, the Court’s primary duty is to re-evaluate the facts and law to determine if the trial court’s sentence was manifestly excessive, illegal, or based on wrong principles. The Court must consider mitigating and aggravating factors, and has the statutory mandate to uphold, reduce, increase, or alter the nature of the sentence by dint of Section 354 (3) of the Criminal Procedure Code. 12.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. However, before delving into the sentence, this being the first appellate court, the court has a duly to satisfy itself that the plea of guilty was unequivocal and hence properly entered by the trial court. 13.In the case of Alexander Lukoye Malika vs Republic [2015] eKLR, the Court of Appeal identified the situations in which a conviction based on a plea of guilty can be interfered as follows: -“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.” 14.Section 207(1) and (2) of the Criminal Procedure Code prescribes the manner of recording plea as follows:i.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;ii.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. 15.The Court of Appeal in Adan vs Republic [1973] EA 445, laid 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. 16.The trial court record shows that the appellant was charged with the offence of incest contrary to section 20 (1) of the Sexual Offences Act and in the alternative, a charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act was preferred. He pleaded not guilty to both counts and the case was set down for hearing. On 8 October 2021, PW1 gave her testimony in chief and the appellant was asked to cross examine. During cross examination, the appellant said, “I am sorry”. I ask for forgiveness and I request the case to go for conciliation. The devil entered me. It was not my doing. I accept the offence.” 17.The trial court rightly interpreted it as an admission of guilty and read over the charges to the appellant in Kiswahili. He answered “ni ukweli”. The prosecution read out the facts of the case in sufficient detail to which the appellant said the facts are true. The court convicted him on his own plea of guilty. This court has analyzed and re-evaluated the charge sheet as well as trial court’s record and finds that the plea of guilty was unequivocal and properly recorded. The appellant having had an opportunity of hearing PW1’s testimony was well aware of the facts of the case and evidence against him and hence made an informed and carefully considered decision to change his plea. The plea of guilty is upheld. 18.Turning on the appeal against sentence, the appellant submitted that the trial court erred by construing Section 20 (1) of the Sexual Offences Act as prescribing a mandatory minimum sentence of life imprisonment. The Respondent on the other hand contended that the Section 20 (1) of the Act prescribes a mandatory sentence and that sentence meted out to the appellant was lawful and any other sentence would be illegal. 19.The issue for determination on this point, is whether Section 20 (1) of the Act prescribes a mandatory sentence of life imprisonment where the victim is below 18 years. 20.Section 20 (1) of the Sexual Offences Act, provides:“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. 21.The victim as per the charge sheet was a girl aged 5 years which brings the proviso to the Section into play. Does the phrase, “shall be liable to imprisonment for life” connote a mandatory term of life imprisonment? 22.The court of appeal in GRD vs Republic (2025) KECA 59 (KLR) had the occasion to consider whether the proviso to section 20 (1) of the Act creates a mandatory sentence of life imprisonment. It had this to say,“ 42.With due respect to the learned Judge, he committed two grave errors. The first error was that he misapprehended the wording of section 20(1) of the Act in holding that where the victim of incest is a child the mandatory sentence is life sentence. We have set section 20(1) of the Act and at the material part it states that: “…if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life…” 43.The predecessor of the court (as per Sir Clement DeLestang V.P) in Opoya v Uganda [1967] EA 752 at page 754 expressed itself thus: It seems to us beyond argument that the words “shall be liable to” do not in the ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed, the court might not see fit to impose it.” 44.The learned Judge in holding that “the section is couched in mandatory terms in regards to the sentence where the victim is a child” fell into error.” 23.The word “…liable to…imprisonment” or in some cases “not exceeding…” sets out the maximum sentences. In such circumstances by dint of Section 26 (2) of the Penal Code, the court has discretion to impose a sentence shorter than prescribed by the relevant provision. 24.In this case, the court finds that the proviso to the section does not create a mandatory sentence of life imprisonment but sets the ceiling of life imprisonment. That proviso must, however, be read in consonance with the main section that sets a minimum of ten (10) years. Consequently, under Section 20 (1) of the Act, the court has a discretion of awarding any sentence above ten (10) years but not beyond life imprisonment. 25.Turning on the second limb, the court is called upon to determine whether the trial court construed the Act as setting a mandatory sentence, and if so, failed to consider the appellant’s mitigation in rendering sentence. 26.The trial court record states as follows on sentencing;“Mitigation noted. Section 20 (1) of the Sexual Offences Act prescribes life imprisonment where conviction of incest is below 18 years old. There is no justification under the sun why accused defiled such a little 5-year-old girl.” 27.On the first element, from the trial court’s record, there is no evidence that the trial court misconstrued section 20 (1) of the Act as creating a mandatory sentence of life imprisonment. The court appreciated its discretion in sentencing and considered both mitigating and aggravating factors in the case. I find no fault on that regard. The court will turn on the second element which is whether the sentence is harsh and excessive in the circumstances. 28.The appellant has urged the court to reduce the sentence imposed by the trial court in view of his plea of guilty and mitigation. The court is alive to the fact that sentencing is an exercise of discretion by the trial court and will not ordinarily be interfered with on appeal except for good reason. In Bernard Kimani Gacheru Vs. Republic (2002) eKLR it was thus held:“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.” 29.Section 354 (3) of the Criminal Procedure Code empowers the High Court to vary a sentence imposed by the trial court. 30.Upon consideration of the mitigating factors which include the fact that the appellant pleaded guilty, is remorseful, was aged 27 years at the time of commission of the offence, is a first offender weighted against aggravating factors such as the age of the victim, the long term physical and psychological effects of the offence on the victim, the objectives of punishment which include denunciation for the offence, retribution and rehabilitation, the court deems it necessary to intervene. 31.In view of the above, the court makes the following orders;i.The conviction by the trial court is upheld.ii.The sentence of life imprisonment is set aside and substituted with a sentence of 27 years imprisonment.iii.The sentence shall run from the date of arrest being 12 July 2021. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 2ND DAY OF JULY 2026JOSEPH KIPKOECH BIOMDOJUDGE