https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8824

Kipyegon v Republic (Criminal Appeal E018 of 2025) [2026] KEHC 8824 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 8824 (KLR) Republic of Kenya In the High Court at Bomet Criminal Appeal E018 of 2025 JK Ng'arng'ar, J June 24, 2026 Between Ronald Koech Kipyegon Appellant and Republic Respondent (From the Conviction and Sentence in Criminal Case Number E598 of 2025 by Hon. Kimtai B.M in the Senior Principal Magistrate’s Court at Sotik) Judgment 1.The appellant was charged for the offence of threatening to kill contrary to section 223(1) of the Penal Code. The particulars of the offence were that on 9th July 2025 at around 0120 hours at Diamond Club, Sotik Town, in Sotik Sub-County within Bomet County, while armed with a knife threatened to kill Vincent Mesa while uttering words in Swahili language “Nitakuuwa” meaning I will kill you. 2.The appellant faced the second charge of creating disturbance in a manner likely to cause a breach of peace contrary to section 95 (1) (b) of the Penal Code. The particulars of the offence were that on 9th July 2025 at around 0120 hours at Diamond Club, Sotik Town, in Sotik Sub-County, with another not before court created disturbance in a manner likely to cause a breach of peace by shouting and yelling while armed with a knife thus threatening to cause more physical trouble to other customers. 3.The appellant was convicted on his own plea of guilty and was sentenced to serve 3 years imprisonment. 4.Being dissatisfied with the conviction and sentence, the appellant appealed against his conviction and sentence. 5.This being the first appellate court, I have a duty to re-evaluate the evidence on record. The Appellant’s Submissions. 6.Through his written submissions dated 5th May 2026, the appellant submitted that the language used by the court had to be understood by the appellant. That the appellant was guaranteed a right to a fair trial under article 50 of the Constitution of Kenya. The appellant further submitted that the appellant’s conviction was not specific whether it was based on count 1 or 2. 7.It was the appellant’s submission that the sentence passed was excessive and harsh for a first offender. That the appellant was under the influence of alcohol and had asked for forgiveness. 8.Before I begin my analysis, I observe that the appellant was convicted on their own plea of guilty. 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. 9.It has however been held that the above section of the law was not an absolute bar to appeals. The Court of Appeal in Wandete David Munyoki v Republic [2015] KECA 421 (KLR) held: -“It has long been settled that section 348 of the Criminal Procedure Code which provides that no appeal is allowed in a conviction arising from a plea of guilty, except to the extent and legality of the sentence, is not an absolute bar to challenging such a conviction on any other ground. Indeed, in Ndede v R [1991] KLR 567, this court held that the court is not bound to accept the accused person’s admission of the truth of the charge and conviction as there may be an unusual circumstance such as injury to the accused person or the accused person may be confused or there has been inordinate delay in bringing him to court from the date of arrest. The list of circumstances and examples that may lead the first appellate court to consider the appeal on merit even when the conviction was on the accused person’s own plea of guilty, are not closed.” 10.Similarly, in John Muendo Musau v Republic [2013] KECA 266 (KLR), the Court of Appeal held: -“There is a long line of authority to the effect that the bar to an appeal against a conviction based on a guilty plea is not absolute…..” 11.From the above authorities, this court is permitted to consider the grounds of appeal raised by the appellant despite the provisions of section 348 of the Criminal Procedure Code. It is only after such consideration and analysis that this court can determine whether the appellant’s conviction was safe or not. 12.I have gone through and given due consideration to the trial court’s proceedings, the record of appeal dated 29th October 2025 and the appellant’s written submissions dated 5th May 2026. The two issues that arise for my determination are: -i.Whether the plea was unequivocal.ii.Whether the sentence was harsh and excessive. i. Whether the plea was unequivocal. 13.I have noted that the appellant was unrepresented during the trial and that one of his grounds of appeal was that the plea he entered was equivocal. To ensure that the appellant was accorded a fair trial in accordance to article 50 of the Constitution of Kenya, I shall relook the plea process in the trial court. 14.The process of plea taking is provided under section 207(1) and (2) of the Criminal Procedure Code which states: -(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. 15.In the case of Simon Gitau Kinene v Republic [2016] KEHC 1569 (KLR), where she stated: -“Finally, courts have always held that extra caution needs to be taken in the case of undefended defendants who plead guilty. I have previously held that where an accused person is unrepresented, the duty of the court to ensure the plea of guilty is unequivocal is heightened. In Paulo Malimi Mbusi v R Kiambu Crim App No 8 of 2016 (unreported) this is what I said and I find it relevant here:“In those cases (where there is an unrepresented Accused charged with a serious offence), care should always be taken to see that the accused understands the elements of the offence, especially if the evidence suggests that he has a defence.….to put it plainly, then, one may add that where an unrepresented Accused Person pleads guilty to a serious charge which is likely to attract custodial sentence, the obligation of the court to ensure that the accused person understands the consequences of such a plea is heightened. Here, the court took no extra effort to ensure this. In these circumstances, given the seriousness of the charge the court was about to convict and sentence the accused person for, it behooved the court to warn the accused person of the consequences of a guilty plea.” 16.I have gone through the trial court proceedings and I have noted that the appellant took plea on 10th July 2025 when the substance of the charge was read and explained to him in a language he understood and he replied “it is true”, a response which was recorded by the trial court and a plea of guilty entered. 17.The facts were read out to him and the appellant stated that the facts were true. He was consequently convicted on his own plea of guilty. Having gone through the trial record, I have noted that the trial court adopted the proper procedure in recording the plea. The appellant understood the charges and the facts and admitted them. He had every opportunity to inform the court that the particulars of the charge or facts were not true but he did not. Similarly, he had the opportunity to inform the court that he did not understand what was said to him but did not. There was no doubt in my mind that the appellant understood the charge he faced. 18.It is salient to note that a guilty plea can be overturned at the mitigation stage if the Accused at mitigation submits and contradicts what he had pleaded guilty to or admitted to. In the event of such an occurrence, the trial court should change the plea to a not guilty plea. The Court of Appeal in the case of John Muendo Musau v Republic [2013] KECA 266 (KLR) observed: -“We want to add here that if the accused wishes to change his plea or in mitigation says anything that negates any of the ingredients of the offence he has already admitted and been convicted for, the court must enter a plea of not guilty. That is to say that, an accused person can change his plea at any time before sentence.” 19.I have considered the appellant’s mitigation in the trial court. His submissions did not negate any facts of the case. 20.Flowing from the above, it is my finding that the appellant’s plea was unambiguous and unequivocal and the appellant was properly convicted for the offence of threatening to kill. ii. Whether the sentence was harsh and excessive 21.The appellant was charged and convicted of threatening to kill contrary to section 223 (1) of the Penal Code which provides that: -Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years. 22.The appellant was sentenced to 3 years imprisonment which in my view was a lenient sentence compared to the maximum sentence of 10 years as provided for in the law above. 23.In the final analysis, it is my finding that the conviction of the appellant was proper and his sentence was fair. 24.In the end, the appeal has no merit and is dismissed. JUDGMENT DELIVERED, DATED AND SIGNED THIS 24TH DAY OF JUNE, 2026.........................................HON. JULIUS K. NG’ARNG’ARJUDGEJudgment delivered in the presence of;Siele/Susan – Court Assistants.Ms. Koech for the State.Appellant.