https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9691

Njoroge v Republic (Criminal Revision E112 of 2025) [2026] KEHC 9691 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9691 (KLR) Republic of Kenya In the High Court at Thika Criminal Revision E112 of 2025 LN Mugambi, J July 2, 2026 IN THE MATTER OF SECTIONS 362, 364, 216 AND 207 OF THE CRIMINAL PROCEDURE CODE, CAP 75 LAWS OF KENYA AND IN THE MАTTER OF CRIMINAL CASE NO. E1934 OF 2025 AT THE RUIRU MAGISTRATES' COURT Between Samwel Kimani Njoroge Applicant and Republic Respondent (A Revision from original conviction and sentence of the Chief Magistrate’s Court at Ruiru (Hon. Charles Mwaniki) in Criminal Case No. E1934 of 2025) Ruling 1.The Notice of Motion dated 16th December, 2025 is supported by the Affidavit of the Applicant, Samuel Kimani Njoroge of even date. He subsequently filed a Further Affidavit dated 30th April 2026. In the said Application, the Applicant wants this Honourable Court to call for and examine the record in Ruiru Magistrate’s Criminal Case Number E1934 of 2025 for the following purposes:i.To review the decision and sentence entered in Criminal Case No. E1934 of 2025 - Republic v Samwel Kimani Njoroge by Hon. Charles Mwaniki to satisfy itself the correctness, legality and propriety of the plea and sentence entered therein.ii.To set aside the plea of guilty entered by the Applicant on 27th November, 2025iii.To set aside or quash the conviction and sentence imposed upon the Applicant on 9th December, 2025 by Hon. Charles Mwanikiiv.To issue an order directing the Applicant to take plea afresh before a magistrate of competent jurisdiction.v.To grant reasonable bail and/or bond terms to the Applicant pending hearing of this Application.vi.To make such further or other orders as this Honourable Court may deem fit and just in the circumstances. Applicant’s Case 2.The Applicant deposed that he was charged with the offence of stealing a motorcycle, namely TVS 125 Registration No. KMGQ 824A, valued at Kshs. 160,700/=. The offence was allegedly committed on 29th October 2025 within Gatong'ora area, Ruiru Sub-County, Kiambu County. The Applicant was sentenced on 9th December, 2025 to three (3) years imprisonment without the option of a fine. 3.The Applicant deposed that the charge was read to him in English language which he did not understand well without any interpretation to the language he was conversant with. Further, the Applicant deponed that the facts and particulars of the offence were not explained to him hence he did not understand what he was pleading guilty to and the consequences thereof. He thus entered a plea of guilty without proper understanding, thus the same was neither voluntary nor informed. 4.The Applicant deposed that prior to his arrest and arraignment, he had been borrowing the complainant's motorcycle with the complainant’s full consent for purposes of earning a daily income. He swore that the incident that was made the subject matter of this charge the fourth instance that the complainant had permitted him use the said motorcycle. 5.The Applicant explained that on the material day, he received a customer who unfortunately drugged him and escaped with the motorcycle leading to its loss. He deponed that this is what gave rise to lodging of a complaint against him and subsequent criminal proceedings. The Applicant stated that he engaged the complainant in negotiations with a view to compensating him for the loss. 6.The Applicant affirmed that he did not steal the motorcycle, a fact he said he asserted and is also confirmed by the pre-sentencing report that was presented before the trial court which the trial court failed to properly consider for it would have considered the report, it would not have accepted his plea of guilty or imposed the said sentence on him. The Applicant swore that he serving imprisonment for a crime he did not commit and stands to suffer grave injustice unless this Honourable Court intervenes and exercises its revisionary jurisdiction. 7.The Applicant further sought to be released on bail. He indicated that he is ready and willing to comply with the bail and/or bond terms that may be imposed upon him by this Court. The Applicant swore that he has no previous criminal record, has a known place of residence, is not a flight risk or a threat to any person or evidence that the prosecution may seek to rely on in the case and will not be under any threat if released on bail/bond. Further, that he is willing to appear in Court whenever needed to do so. 8.In his further affidavit, the Applicant refutes the assertion in the Replying affidavit he took plea in Kiswahili. He reiterated that the plea was taken in English. 9.The Applicant disclosed that while in police custody, he was instructed that when asked whether the charge is true, he should answer "ni ukweli". However, he did not understand the legal implication of giving such a response. 10.The Applicant deponed that he was placed in custody pending sentencing and never afforded any opportunity to contact or appoint an advocate. He added that his family was advised to await sentencing and thereafter seek assistance from the Office of the Director of Public Prosecutions (ODPP) on how to file an appeal. 11.On the day of sentencing, the Applicant deposes that he raised his hand to draw the Court's attention of his desire to change plea after understanding the meaning and implication of entering a guilty plea. At the time, he was appearing virtually from the police custody and one of the police officers pulled his hand down and informed him that he could not change his plea. He was thus left without any option but to be sentenced. 12.The Applicant deposes that the Court denied him a chance to personally mitigate indicating that his mitigation was sufficiently covered in the pre-sentence report. 13.The Applicant contends that his right under Article 49 of the Constitution, particularly, the right to be informed promptly, in a language I understand, of the reason for his arrest and the nature of the charge; the right to legal representation, the right to be released on bond or bail on reasonable conditions as well as his right to a fair hearing under Article 50 of the Constitution were violated as he was denied a fair opportunity to understand the proceedings or defend himself. Further, that the provisions of Section 207(1) and (2) of the Criminal Procedure Code (Cap 75) were not complied with. 14.The Applicant deposed that the plea was not unequivocal; not made freely or voluntarily and was not entered with full understanding of the charge and its consequences. 15.The Applicant deponed that some efforts were made to trace the motorcycle and certain items including an umbrella were subsequently recovered from a shop but no meaningful investigation was conducted as there was no recording statements from relevant witnesses such as from the shop owner yet this would have led to the arrest and prosecution of the actual perpetrators of the offence. 16.The Applicant stated that the person found in possession with some of the stolen items was not charged with the offence of handling stolen property, which was an investigative lapse that demonstrates there was compromise and/or a calculated effort to unjustly implicate him in the matter. 17.The Applicant deposed that any indication by his family regarding his willingness to accept a sentence of one and a half (1½) years was not an admission of guilt, but a desperate attempt to bring closure to the matter. 18.The Applicant reiterated that there were fundamental procedural irregularities in the process, including equivocal plea of guilty; lack of legal representation, denial of the opportunity to communicate with his family and, the failure by the Court to properly address his assertion of innocence as reflected the pre-sentence report. Respondent’s case 19.The filed a Replying Affidavit sworn by ESTHER C. TOROSI on 23rd March, 2026. 20.The Respondent refuted the assertion that the charge was read to the Applicant in in a language he did not understand and affirmed that the proceedings were clear that the charge was read in Kiswahili and the Applicant replied ‘ni kweli.’ That the word ‘English’ was cancelled was left, meaning that the language used was Kiswahili. 21.The Respondent affirmed that the plea was unequivocal and duly complied with Sections 207 (1) & (2) of the Criminal Procedure Code as the Court followed the correct procedure in taking plea. 22.The Applicant deposed that the sentence handed down by the trial court was proper and legal as it considered the aggravating and mitigating circumstances. Further, that the pre-sentence report that was compiled indicated that the Applicant was unsuitable for non-custodial sentence. 23.The Respondent explained that the offence upon which the Applicant was sentenced s a felony that attracts seven (7) years imprisonment. However, the Applicant was not sentenced to seven (7) years. 24.The Respondent opposed the Application for release on bond contending Applicant has not met the threshold as there are no exceptional circumstances to warrant the consideration of the bail or bond by the Court nor has the Applicant demonstrated a high chance of success. 25.The Respondent urged this Court to dismiss the Application insisting that there was no demonstration of illegality in the proceedings or the sentence. Applicant's Submission 26.The Applicant identified only one main issue for determination, namely: Whether the Applicant has met the legal threshold for this Honourable Court to exercise its revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code. 27.Counsel for the Applicant highlighted the extensive revisional powers conferred upon this Court by Section 362-364 under the Criminal Procedure Code, in particular, the power to call for and examine the record of the subordinate court for purposes of satisfying itself on the correctness, legality, or propriety of any finding, sentence, or order, as well as the regularity of proceedings including the power to alter or reverse such orders where illegality, impropriety, or irregularity has been established. 28.Counsel referred this Court to the case of Joseph Nduvi Mbuvi Republic, where the Court held that revision is available where there is:1.Incorrectness,2.Illegality,3.Impropriety, or4.Procedural irregularity in the proceedings of the subordinate court. 29.Similarly, in Republic v James Kiarie Mutungei, where the Court emphasized that revision is meant to cure manifest errors and injustices arising from subordinate court proceedings. 30.On the question of whether the Plea entered by the Applicant was unequivocal, Counsel relied on Section 207 of the Criminal Procedure Code and the authoritative case of Adan v Republic as the established legal yardstick of a proper plea taking process whose key elements are;the charge and the ingredients must be explained in a language understood by the accused; the accused's response must be clear, voluntary and informed; the facts must be narrated and admitted without ambiguity, and any doubt must result in a change of plea. 31.Counsel submitted that the Applicant deponed that he did not understand the plea-taking process as he was coached to respond "ni ukweli" without understanding the legal implications of the reply and when he attempted to change the plea, he was physically restrained from addressing the Court. Counsel argued that these facts seriously undermine the voluntariness and clarity of the plea thereby rendering it equivocal. 32.Moreover, Counsel argued that the Applicant maintained in the pre-sentence report that he was drugged hence did not steal the motorcycle, which fact is inconsistent with guilt. Counsel argued that the Court should have entered a plea of not guilty in the circumstances. Counsel argued that failure by the trial court amounts to a fundamental error of law warranting revision. 33.Counsel further submitted the Applicant’s fundamental rights under Article 49 and Article 50 of the Constitution of Kenya, 2010 were gravely violated during the plea-taking and sentencing process as the Applicant was neither informed of his right to legal representation nor afforded an opportunity to exercise that right. That such an omission is not a mere procedural lapse but a fundamental breach that goes to the core of a fair trial. The absence of legal counsel, particularly at the critical stage of plea taking, exposed the Applicant to the risk of entering a plea without fully appreciating the legal consequences thereof. Further, the Applicant was not accorded a genuine opportunity to understand the charge and its essential ingredients. Further, Counsel argued that the Applicant was actively prevented from communicating with the Court at a crucial stage of the proceedings, namely, the day of sentencing, when he attempted to draw the Court's attention on his desire to change his plea upon gaining some understanding of the legal implication but was physically restrained by a police officer and informed that he could not address the Court. Counsel argued that this action effectively shut him out of the proceedings and denied him the right to be heard thereby infringing on the right to a fair trial. 34.Counsel argued that the foregoing violations strike at the very foundation of the trial process and render the plea that was taken by the Applicant constitutionally infirm and the proceedings irregular making the resultant conviction unsafe. 35.The Applicant further submitted that a material irregularity also occurred during sentencing as he was denied an opportunity to personally mitigate as the trial court placed full reliance on the pre-sentence report to the exclusion of taking the Applicant’s personal oral mitigation contrary to Section 216 of the Criminal Procedure Code, which obligates the court to consider all relevant mitigating circumstances, including the accused person's own representations before passing sentence. 36.Counsel submitted that the denial of the Applicant the opportunity to personally mitigate deprived him a chance to clarify his position and the circumstances surrounding the plea and also contravened the principles of fair hearing hence is a grave procedural irregularity warranting the intervention by this Honourable Court. 37.Counsel further submitted that the conviction was founded on a flawed and an incomplete investigative process, thereby occasioning a miscarriage of justice. Counsel citing the deposition contained in the Applicant’s Further Affidavit, argued that efforts had been made to trace the stolen motorcycle, and indeed certain items linked to the incident, including an umbrella were recovered from a shop but despite this critical lead, the investigators failed to record a statement from the shop owner or pursue that line of inquiry to its logical conclusion. Further, the person found in possession of part of the recovered items was not charged with the offence of handling stolen property, pointing to a clear investigative lapse. According to Counsel for the Applicant, these omissions demonstrate that key evidence was ignored, crucial witnesses were not examined, and alternative suspects were not pursued. Counsel argued that while this Honourable Court is not sitting as a trial court, it is properly seized of jurisdiction to intervene where a conviction is predicated on an evidently compromised investigative process that undermines the integrity of the proceedings and results in injustice to the Applicant. 38.Reacting to the Respondent’s position that the Applicant cannot challenge a plea of guilty, Counsel argued that while it is correct that Section 348 limits appeals arising from convictions based on a plea of guilty, the instant proceedings are not an appeal but a revision properly brought under Sections 362 and 364 of the Criminal Procedure Code. Counsel relied on the case of John Mwangi Kamau v Republic, where the Court affirmed that the bar under Section 348 does not oust the High Court's revisionary powers, particularly where there is evidence of procedural irregularity, illegality, or a miscarriage of justice. 39.The Applicant’s Counsel argued that the above shortcoming taken together disclose a clear miscarriage of justice which this Court is duty-bound to correct in the exercise of its supervisory and revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code since as held in Republic v Mohamed Abdow Mohamed, the power of revision exists to prevent injustice and to correct glaring errors apparent on the face of the record which are the circumstances apparent in the Applicant’s case. 40.Counsel thus urged this Honourable Court to set aside trial court proceedings and afford the Applicant be afford a fair trial by making an order of retrial before a magistrate of competent jurisdiction other than the one who presided over the initial proceedings; grant the Applicant reasonable bail and/or bond pending retrial; and issue such further or other orders as the Court may deem just and expedient in the circumstances. Submissions by the Respondent 41.The Respondent filed submissions by Esther C. Torosi dated 24/3/2026. Counsel reiterated the assertions in the made in the replying affidavit at great length and thus this Court may not reproduce those that are already captured in the Replying affidavit. 42.Counsel cited Section 348 of the Criminal procedure Code the accused pleaded guilty and was convicted hence pursuant to that section, cannot appeal the conviction, and the only challenge he could mount was as to the extent and legality of the sentence. 43.Counsel argued that other than pleading ‘ni kweli’ to the charge, the facts were also read and the Applicant replied that to the stated facts as ‘maelezo ni kweli’. As such, the Respondent argued that the holding in Adan v Republic [1973] EA 445 on unequivocal plea was adhered to. 44.The Respondent argued that the sentence passed by the trial court was proper and legal as it considered both aggravating and mitigating circumstances with the pre-sentence report that was presented indicating that the Applicant was unsuitable for non-custodial sentence. 45.Counsel further reiterated that the threshold for the grant of bail has not been demonstrated. Analysis and Determination 46.Having regard to the deposition of the Applicant and the Respondent contained in the respective affidavits as well as their submissions, this Honourable Court distils the following to the issues for determination in this Application:a.Whether the plea of guilty entered by the Applicant and consequent conviction recorded by the trial court satisfied the requisite legal threshold for a valid plea and convictionb.Whether the sentencing process by the trial court and the sentence imposed were proper, lawful and justified in the circumstances of the casec.Whether the Applicant is entitled to be admitted to bail or bond pending the hearing and determination of this Applicationd.Whether the Applicant should be granted the orders sought Whether the plea of guilty entered by the Applicant and consequent conviction recorded by the trial court satisfied the requisite legal threshold for a valid plea and conviction 47.In determination this issue, it is necessary to consider the fundamental principles that guide the taking of plea and conviction by the Court. 48.The procedure to be followed where accused pleads guilty is provided for under Section 207 (1) & (2) of the Criminal Procedure Code Cap 75. Sub-section (2) is particularly relevant to the issue at hand. The relevant provisions read as follows:Section 207. Accused to be called upon to plead1.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. 49.The manner of recording a guilty plea was further articulated in the cerebrated Court of Appeal decision of Adan v Republic [1973] 1 EA 445 where their Lordships guided as follows:“When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of plea to ‘not guilty’ and proceed to hold trial. If the accused does not deny the alleged facts in material respect, the magistrate should record a conviction and proceed to hear any other facts relevant to the sentence. The statement of facts and accused’s reply must of course, be recorded.The statement of facts serves two purposes: it enables the magistrate to satisfy himself that the plea of guilty was really unequivocal and that the accused has no defence and it gives the magistrate the basic material on which to assess sentence. It not infrequently happens that an accused, after hearing the statement o facts, disputes some particular fact or alleges some additional fact, showing that he did not really understand the position when he pleaded guilty: it is for this reason that it is essential for the statement of facts to precede the conviction” 50.Essentially, the Applicant contends that this procedure was not followed in that instead of the charge being read to him in the language he understood, the charge was read to him in the English language and there was no translation. Further, he contends that in the pre-sentence report, he had categorically stated that he did not steal the motor cycle in question hence the Court should not have proceeded to sentence him. 51.The Respondent argued that the court record was clear that contrary to the claims by the Applicant, the Court indicated the language that was used was Swahili and upon the charge being read, the Applicant replied ‘ni kweli’ and thereafter, after the facts were read, he also answered ‘maelezo ni kweli.’ 52.The Applicant further went on to claim that he was misled at the police station to respond to the charges with words ‘ni kweli’ without understanding the legal implications of making such a response. 53.I will address the latter claim by the Applicant that he was misled to respond to the charges with the word ‘ni kweli’ while at the police station without understanding the legal implication of the answer. There were also similar allegations he made that when he attempted to draw the attention of the Court so as to change plea before sentence, he was restrained by a police officer who put his hand down. 54.In my considered view, these latter issues the Applicant is raising call for additional facts or evidence that cannot be verified from the record of the subordinate court. A revision application is only confined to the record and anything outside the record cannot be the subject of a revision application. Under section 362 of the Criminal Procedure Code, the revision jurisdiction of this Court is confined to the examination of the record of the proceedings and therefore, in exercise of revisionary power, this Honourable Court would be overstepping its mandate if it were to entertain matters that require introduction of fresh evidence to resolve. Section 362 specifically provides thus:362.Power of High Court to call for recordsThe High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court. 55.Turning now to the manner the plea was taken, the lower court record shows that on 27th November, 2025, the Applicant appeared before Hon. C Mwaniki – Principal Magistrate. According to the proceedings of that day, the learned Magistrate clearly indicates that the language of plea was Swahili and upon the charge being read out, the Applicant is shown to have responded in his own words as follows: ‘ni kweli’. 56.The Court accepted the Applicant’s plea of guilty and proceeded to ensure the complete facts, outlining the circumstances of the case against him, were read out to him. 57.The Applicant was again required to respond to the facts to which the Court recorded the Applicant to state as follows: ‘ maelezo ni kweli’ 58.The trial court procedurally entered a conviction based on the Applicant’s plea of guilty. Procedurally, the learned magistrate did not err in the manner he conducted the plea taking process. 59.The claim by the Applicant that the procedure of taking the plea was irregular or that the language used was one that he did not understand, is unsupported by the record. Whether the sentencing process by the trial court and the sentence imposed were proper, lawful and justified in the circumstances of the case 60.The judiciary sentencing guidelines 2023 at page 58 prescribe the procedure for determination of the sentence as follows:4.5Determination of the sentence4.5.1In determining the appropriate sentence, courts must assess a number of issues starting with the degree of both culpability and harm.4.5.2The assessment of culpability will be based on evidence of the crime provided through testimony where a trial has been conducted, or, where a plea is entered, through the prosecution summary of facts. Aggravating and mitigating features surrounding the offence may be advanced by the prosecution and the accused person (or his/her representative).4.5.3Where an offence is committed by more than one offender a court shall ascertain the culpability of each of the offenders involved and render individual sentences commensurate to their involvement in the offence.4.5.4The assessment of harm may be based on testimony, or the summary of facts presented and also by a victim impact statement where that has been obtained.4.5.5Mitigating factors refers to any fact or circumstance that lessens the severity or culpability of a criminal act and can also include the personal circumstances of the offender.4.5.6Convicted offenders should be expressly provided with the opportunity to present submissions in mitigation.4.5.7A list of aggravating and mitigating circumstances – which is not exhaustive – is contained within the GATS along with those specific to murder, manslaughter, and wildlife cases, in Part V.4.5.8Having heard all relevant submissions and considered any reports advanced by either prosecution or defence, or the probation or children’s officer (where applicable), and any victim impact statement, the court should:i.Decide as to whether a custodial or a non-custodial sentence should be imposed in line with these guidelines.ii.In the case of sexual offences, before the terms of a custodial sentence are determined, the court must have recourse to relevant probation reports as required in sections 39 (2) and (4) of the Sexual Offences Act No.3 of 2006 that contain provisions about post-penal supervision of dangerous sexual offenders. 61.The above policy guidance appears to me to amplify section 216 of the Criminal Procedure Code which states:“The Court may before passing the sentence or making order against accused person under Section 215, receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made.” 62.The Applicant contended that he was not allowed to personally mitigate and that the Court indicated that the pre-sentence report had mitigated for him. 63.I have examined the Court record and it is apparent from the proceedings that the opportunity to mitigate was afforded to the Applicant on 27/11/2025 where in response he sated as follows:“I have not refused to pay back the motorcycle but the complainant gives me very short time. I can pay in one and half years.” 64.Nothing else was said, or anything that is inconsistent with the facts he had just pleaded guilty to. The claim that he was not given a chance to personally mitigate is thus not correct, the record shows the opportunity was availed to him. Whether the Applicant is entitled to be admitted to bail or bond pending the hearing and determination of this Application 65.This issue is already overtaken by events and is no longer available for consideration. The Application has been heard and all the substantive issues raised have collapsed. There thus be no basis of considering this particular issue. 66.Finally, on the question of whether the Applicant is entitled to the order sought, the answer is in the negative. The Applicant has failed to demonstrate any irregularity, impropriety or illegality that would justify the orders sought. Furthermore, I have also examined the sentence imposed and taken into account the circumstances surrounding the commission of the offence. It is my considered view that the learned magistrate exercised his discretion properly in imposing the sentence of three (3) years imprisonment. I would find no basis to interfere with the same. 67.This Application is devoid of merit and is hereby dismissed. DATED, SIGNED AND DELIVERED AT THIKA THIS 2ND DAY OF JULY 2026................................................L. N. MUGAMBIJUDGE