https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9178

Onyango v Republic (Criminal Appeal E166 of 2026) [2026] KEHC 9178 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEHC 9178 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E166 of 2026 DR Kavedza, J June 29, 2026 Between Collins Ainea Onyango Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered by Hon. C. Njagi (PM) on 25th October 2024 at Kibera Chief Magistrate’s Court Criminal case no. E133 of 2024 Republic vs Collins Ainea Onyango) Judgment 1.The appellant was charged with Attempted Defilement Contrary to Section 9 (1) (2) and alternative Count of Committing an Indecent Act with a child Contrary to Section 11 (1) of the Sexual Offences Act. The particulars of the offence are that on the 24th Day of October 2024 at around 0830 hours at [Particulars withheld] Slums in [Particulars withheld] Sub-County within Nairobi County, intentionally attempted to cause his penis to penetrate the vagina of J.A.O a child aged 8 years old. 2.The appellant was convicted of his own plea of guilt on the alternative count and was sentenced to thirty (30) years imprisonment. Being aggrieved, the appellant challenged his sentence. He challenged the trial court failed to consider his plea and the sentence imposed was harsh. He urged the court to set aside the sentence imposed. 3.It is the Appellant’s case that his plea of guilty was not unequivocal. Further that the manner in which the charge was read to him did not comply with. However, no submissions were made by the Respondent in this respect. 4.Section 207 of the Criminal Procedure Code (Cap. 75, Laws of Kenya) provides: 207.Accused to be called upon to plead(1)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.(2)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.(3)If the accused person does not admit the truth of the charge, the court shall proceed to hear the complainant and his witnesses and other evidence (if any). 5.Section 207 of the Criminal Procedure Code prescribes the procedure for taking a plea. The substance of the charge must be stated to the accused in a language he understands and he must be asked whether he admits or denies it. Where the accused admits the charge, his own words should be recorded as nearly as possible before the court proceeds to conviction and sentence, unless there is sufficient cause to the contrary. 6.The appellant contends that his plea of guilty was equivocal. The applicable principles were authoritatively stated in Adan v Republic [1973] EA 445, where the Court of Appeal held that:i.the charge and every essential ingredient of the offence must be explained to the accused in a language he understands;ii.the accused's own words must be recorded and, if they amount to an admission, a plea of guilty entered;iii.the prosecution must immediately state the facts and the accused be afforded an opportunity to dispute, explain or add to them;iv.if the accused disputes the facts or raises any question as to his guilt, a plea of not guilty must be entered; andv.only where there is no change of plea should a conviction be recorded, followed by mitigation and sentence. 7.In this case, the charge and its ingredients were explained to the appellant in a language he understood. He responded, "Ni ukweli", which was recorded. The prosecution thereafter outlined the facts, upon which the appellant again admitted their truth by repeating, "Ni ukweli". At no stage did he dispute the facts, raise a defence or suggest any misunderstanding. The record shows full compliance with both section 207 of the Criminal Procedure Code and the principles in Adan v Republic (supra). That procedure was followed. The statement of facts enabled the trial court to satisfy itself that the plea was unequivocal before entering a conviction. 8.Consequently, I find no merit in the contention that the plea was equivocal. The appellant understood both the charge and the facts supporting it and voluntarily admitted them. 9.Section 348 of the Criminal Procedure Code provides:“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." 10.The scope of appellate intervention was considered in Alexander Lukoye Malika v Republic [2015] eKLR, where the Court of Appeal held:“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... where an accused person pleaded guilty as a result of mistake or misapprehension of the facts... where the charge... disclosed no offence known to law... [or] where upon admitted facts the appellant could not in law have been convicted of the offence charged." 11.That position was reaffirmed by Korir J. (as he then was) in Abdallah Mohammed v Republic [2018] eKLR. 12.None of those exceptions arises here. The charge under section 11(1) of the Sexual Offences Act disclosed a known offence. The appellant admitted both the charge and the facts without qualification. There is no indication of mistake, ambiguity or misapprehension. His mitigation, in which he sought forgiveness and stated that he was an orphan, further demonstrates that he appreciated the consequences of his plea. The conviction was therefore proper and cannot be disturbed. 13.On sentence, section 11(1) of the Sexual Offences Act provides that:“Any person who commits an indecent act with a child is guilty of an offence and is liable upon conviction to imprisonment for a term of not less than ten years." 14.An appellate court will interfere with sentence only where the trial court acted on wrong principles, overlooked a material factor, considered irrelevant matters or imposed a manifestly excessive sentence. 15.I have considered the record and note that the trial court took the appellant's mitigation into account. However, the trial court failed to give sufficient weight to the fact that he pleaded guilty at the earliest opportunity, accepted responsibility and saved valuable judicial time. He was also a first offender, and the record discloses no aggravating circumstances justifying a sentence three times the statutory minimum. 16.Although the offence is undoubtedly serious, the sentence of thirty (30) years' imprisonment was, in the circumstances, manifestly excessive. The interests of justice will be adequately served by the statutory minimum sentence. 17.Accordingly, the appeal against sentence partially succeeds. The sentence of thirty (30) years' imprisonment is substituted with a sentence of ten (10) years' imprisonment, to run from 24th October 2024, being the date of the appellant's arrest, pursuant to section 333(2) of the Criminal Procedure Code. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JUNE 2026________________D. KAVEDZAJUDGEIn the presence of:Applicant PresentMs. Otiya for the RespondentKarimi Court Assistant.