https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10179

Kiptanui v Republic (Criminal Appeal E051 of 2023) [2026] KEHC 10179 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10179 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Appeal E051 of 2023 E Ominde, J July 9, 2026 Between Sebastian Kiptoo Kiptanui Appellant and Republic Respondent Judgment 1.The Appellant was charged and convicted of two (2) counts of Breaking into a Building and Committing a Felony, Contrary to Section 306(a) of the Penal Code. The particulars of the offence were that on the night of 2nd September 2021 and 3rd September 2021, at an unknown time, at Kapkei sub location, in Moiben Sub County, within Uasin Gishu County, with others not before court, he entered a shop belonging to Esther Jemutai Malakwen, and committed therein, a felony namely stealing of the following: -cash money Kshs. 10,000, woofer make Royal Sound worth approximately Kshs 10,000, 7 kgs sugar, 8 kgs rice, 3 pieces of 1 litre Golden Fry Cooking Oil, 5 packets of 2 kgs Ajab wheat flour, 1 packet of pens, one box of small plastic torches, 5 pieces of Arimis (200gms), 10 pieces of Fiancee body lotion (100ml), 1 dozen of Golden Lion batteries (dry cell), 20 pieces of Molfix baby pants, 5 pieces of Toss detergent (200gms), 2 pieces of Toss (500gms), 9 Menengai bar soaps, 4 pairs of Bata ngoma shoes, 4 pieces of Asis tea leaves (250gms), 2 vests, 3 bead decorated belts, two plain belts, 2 pieces of Pamoja hair piece, 5 pairs of Umoja slippers. 3 packets of twisty sweets, Safaricom and airtel top up cards worth Kshs 1,000 all these valued at approximately Kshs. Kshs, 49,000/-." 2.The Appellant initially pleaded not guilty when the matter came up for plea taking on 17th January 2022, and the matter proceeded for hearing with the prosecution calling three witnesses in support of its case. PW1 was the Complainant, Esther Chemutai Malakwen. She stated that she operated a Kiosk in Kapkei Malakwen and that on the night on 2nd and 3rd September 2021, her kiosk was demolished. She woke up to find it demolished and went and reported to the police, and that several things were stolen. She testified that the stolen items are listed in the charge sheet. The witness urged that police officers came to the scene and took photos which she produced as MFI-1 and that later on, she was called by police officers who informed her that some stolen items had been recovered. She went and saw her radio, rungu, needle, thread and other items. When shown a photo in court, she confirmed that those were the recovered items. 3.PW2 was Dominic Kangogo, the assistant chief of Elgeyo Border sub-location. He stated that on 10th December 2022, he got a report from one village elder, John Chesang, that one of his Kiosks had been broken into. He went to the scene and saw the damage. He also saw tyre marks on a branch and noted that there were droppings of rice leading from the scene. That they followed the rice until they saw a home and they went and asked the owner of the house, one Joseph who told them he was not aware of anything. He then took them to his son’s house where they found several shop merchandise. They confiscated them and took them to the petrol station. When referred to MFI-2, he stated that those were the items they found in the house of the accused person. 4.PW3 was PC Francis Mahama, the investigating officer in this file. He stated that on 10th January 2021 the case was been minuted to him to investigate. That he telephoned the complainant and also visited the scene of the incident. He saw that the shop of the complainant had been broken into. A piece of timber had been removed from the front and the door was also broken. He took photos at the scene and also recorded statements of the witnesses. 5.He stated that later on, the Assistant chief of the area came in company of some village elders and brought with them some items they said had been recovered from the house of the accused. He called the complainant and another one who had also reported house breaking and theft. The suspect was later arrested and brought to the police station and he recorded his statement. He then compiled my file and later caused accused to be charged. The shop goods which were recovered and photos he took, the photos are here together with the certificate. 6.The court then found that the Appellant had a case to answer and placed him on his defence on 25th April 2023. However, the appellant stated to the court that he wished to be reminded of the charge. The court then directed that the plea be taken afresh. The charge was then read over and explained in Kiswahili and the appellant replied ‘Ni kweli’ on both counts. He was then given an opportunity to mitigate and upon considering his mitigation, the trial court sentenced him to 7 years on each count to run consecutively vide the judgment delivered on 12th March 2023. 7.Being aggrieved by both conviction and sentence, the Appellant instituted the present appeal vide an undated Petition of Appeal, subsequently amended on 29th October 2025, filed through the firm of Messrs Kariuki Mwaniki & Company Advocates, premised on the following grounds:1.That the learned trial Magistrate erred in law and fact by failing to properly explain to the Appellant the nature and substance of the charge, contrary to section 207 of the Criminal Procedure Code.2.That the learned trial Magistrate erred in law and fact by entering a conviction on an equivocal plea of guilty without ensuring that the Appellant understood the ingredients of the offence in a language he understood.3.That the learned trial Magistrate erred in law by meting out a harsh and excessive sentence.4.That the learned trial Magistrate erred in law and fact by failing to consider the Appellant’s mitigation and the principles governing sentencing.5.That the learned trial Magistrate erred in law and fact by failing to consider alternative sentences. 8.The parties were directed to file submissions on the appeal. the appellant filed submissions dated 17th December 2025 through the firm of Messrs. Kariuki & Company Advocates whereas the Respondent filed submissions dated 28th October 2025 through prosecution counsel S.G Thuo. Appellants’ submissions 9.Learned counsel set down the duty of the court as an Appellate Court and proceeded to submit on the issues for determination which he identified as whether the plea of guilty was unequivocal and properly taken in compliance with Section 207 of the Criminal Procedure Code and whether the sentence imposed was harsh, excessive, and imposed without proper consideration of mitigation, sentencing principles, and alternative sentences. 10.On the equivocality of plea, Counsel urged that the record demonstrates that the Appellant consistently pleaded not guilty until after the prosecution had closed its case and the trial court had ruled that he had a case to answer. That on 27th March 2023, immediately after the explanation of Section 211 of the Criminal Procedure Code, the Appellant stated that he wished “to be reminded of the charge.” That this statement, on its face, did not amount to an unequivocal intention to plead guilty. It called for clarification by the trial court as to whether the Appellant merely sought clarification of the charge or intended to change his plea. 11.That without conducting such an inquiry, the trial court proceeded to take a fresh plea which omission was fatal. He cited the decision in Kariuki v Republic [1954] 21 EACA 75 in support of this submission. Counsel further submitted that upon the charge being read in Kiswahili, the Appellant responded “Ni kweli.” That he court did not warn the Appellant of the serious consequences of changing his plea after the prosecution case had closed, nor did it ascertain whether the Appellant appreciated that he was abandoning his right to tender a defence. 12.On 12th May 2023, the court again recorded that the Appellant pleaded guilty and responded that the "facts are true.” However, the record does not show that the essential ingredients of the offence of breaking into a building and committing a felony were explained in detail, particularly the elements of breaking, entry, and participation. He urged that the proper procedure for recording a plea of guilty was authoritatively set out in Adan v Republic [1973] EA 445 by the Court of Appeal, reproducing the relevant paragraphs. 13.He further submitted that the Court emphasized that strict compliance with this procedure is mandatory and any deviation renders the plea equivocal. He additionally cited the Court of Appeal’s holding in Paul Matungu v Republic [2006] eKLR and submitted that in the present case, the facts did not place the Appellant at the scene of the crime, did not explain the circumstances of his arrest, and relied on alleged possession of items without establishing the doctrine of recent possession. 14.Counsel cited the decision of the Court of Appeal in Omondi v Republic [2001] eKLR on the caution to exercise when taking a plea of guilty. He urged that taken cumulatively, the manner in which the plea was taken violated Section 207 of the Criminal Procedure Code and Article 50(2) (b) and (g) of the Constitution, which guarantees the right to be informed of the charge with sufficient detail and the right to choose how to plead. 15.Further, that the Court of Appeal has further addressed the dangers attendant to a change of plea after the close of the prosecution case. He cited the decisions in Njuki v Republic [1990] KLR 334 and Chacha v Republic [2016] eKLR on change of plea. He pointed out that in the present case, no such caution was exercised, nor was the Appellant warned of the consequences of abandoning his defence after a ruling that he had a case to answer. He urged that the plea was equivocal, the conviction unsafe, and the same ought to be quashed. 16.On sentence, he urged that prior to sentencing, the trial court sought information on the Appellant’s previous record and ordered Criminal Case No. 80 of 2022 to be availed. That there is no indication on record that the said file or certified records were ever produced before the court. Nevertheless, the court proceeded to sentence the Appellant on the basis that he was not a first offender. He posted that in the absence of verified previous records, and without due consideration of mitigation or alternative sentences, the sentence imposed was manifestly harsh and excessive. He urged the court to allow the appeal as prayed. Respondents’ submissions 17.Learned counsel for the state submitted that he wished to point out that the appellant is a habitual offender and had previously been charged and convicted for the same offence of breaking into a building and committing a felony therein, vide Eldoret Criminal Case No. 80 of 2022 R vs Sebastian Kiptoo Kiptanui, and sentenced to serve 4 years’ imprisonment. That this fact alone justifies the sentence that the appellant is currently aggrieved against. 18.Counsel urged that the applicant pleaded guilty on his own volition twice on different dates and facts were read out to him in Kiswahili on the 12th day of May,2023, to which he insisted on his guilt and was recorded as such. He was sentenced to serve a total of 14 years’ imprisonment for the two offences. Each offence carries a maximum sentence of 7 years and we submit from the above arguments of a previous record over an offence of similar nature, he was the author of his own misfortune. Further, that D. Kemei J sitting at Bungoma on the 19th day of December,2003 in Wanyonyi & 3 Ors vs Republic Crim.Appeal E115, E116, E117 and E118 of 2021 Consolidated [2023] KEHC26736(KLR) reminded the court that sentencing is a discretion of the trial court and that superior courts should interfere with the same on sparingly. 19.Counsel urged that he sought to rely on Section 348 of the Penal Code that provides that no appeal shall be allowed in the case where an accused person has pleaded guilty to an offence and has been convicted on that plea by a subordinate court, except as to the extent or legality of that sentence. He additionally cited the case of Fredrick Kiplangat Mutai vs R Cr App E026/22 and urged that the procedure for plea under Section 207(1) and (2) of the CPC were fully complied with as the charges were read out to him in Kiswahili, a language he understood, the facts read out and he admitted to the same. 20.On the issue of the right to legal representation, Counsel urged that this is not one of the non-derogable rights envisaged under Article 25 of the Constitution, 2010. He placed reliance on the decision of the Supreme Court in R vs Chertgo & 2 Ors (Petition 5 of 2015) [2017] KESC 15(KLR). Counsel urged that the Court of Appeal in Daniel Macharia Njoroge vs R in Crim.App No. 497 of 2007[2017] eKLR elaborated that Article 50(2) of the Constitution on substantive injustice would arise in circumstances where an accused person is charged with an offence punishable by the death penalty and is tried without legal representation. Counsel submitted that an appellant with a previous criminal record of an offence of similar nature who was handed a perfectly legal sentence does not deserve the interference of that sentence by this superior court. Analysis & Determination 21.In light of the above summation of the pleadings and submissions, it is my considered opinion that he following issues arise for determination;Whether the plea of guilty was unequivocalWhether the sentence was harsh or excessive in the circumstances 22.In the case of Okeno v Republic [1972] EA 32 at 36, the East Africa Court of Appeal stated thus on the duty of the court on a first appeal:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) 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. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a 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 draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424." 23.In 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 with 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.” 24.Whereas under the provisions of Section 348 of the Criminal Procedure Code, it is provided 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, I note that the Appellant herein has impugned the conviction therein on the ground that the plea that led to the conviction and subsequent sentence was not an unequivocal plea. For this reason, it behoves the court then to re-examine the process of that plea taking and the circumstances of the change of plea to that of guilty upon which the conviction and eventual sentence was premised. 25.In this regard, Section 207 of the Criminal Procedure Code provides as follows;(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 case as hereinafter provided.(4)If the accused person refuses to plead, the court shall order a plea of “not guilty” to be entered for him.(5)If the accused pleads(a)that he has been previously convicted or acquitted on the same facts of the same offence; or(b)that he has obtained the President’s pardon for his offence,the court shall first try whether the plea is true or not, and if the court holds that the evidence adduced in support of the plea does not sustain it, or if it finds that the plea is false, the accused shall be required to plead to the charge. 26.The process of plea-taking so that a plea qualifies to be unequivocal was set out in the leading case of Adan v Republic (1973) EA 445 at 446, in the following terms:“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 a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused's reply must, off course, be recorded.” 27.The above said on both statute and case law, I now turn to the lower court proceedings. I have considered the impugned proceedings. I note that on the date the initial plea was taken, that is on 13th January 2022, the appellant was asked to elect his preferred language which he did. The charge was then read out and explained to him in his preferred language being Kiswahili and he admitted to all the counts. The court directed that the particulars of the alternative count be properly framed and the matter was set for mention. 28.On 19th January 2022 at the next mention, barely a week later, the record shows that the charge was again read over and explained to the appellant in Kiswahili and again, the appellant admitted to all the counts. On 21st January 2026 when the facts of the case were to be read, the appellant was again reminded of the charge and he still admitted to all the counts. Because there were no exhibits in court on that day, the facts were reserved for 26th January 2022 when the record shows that the charge was again read over and explained to the appellant in Kiswahili and this time he denied the charges and a plea of not guilty was entered. 29.The matter then proceeded to hearing and by the time the appellant again changed his mind and admitted to the charges and a plea of guilty entered, the prosecution witnesses had testified, the appellant had proceeded and cross examined them, the prosecution had closed its case and the appellant had been put on his defence. The circumstances of the change of plea is that the appellant asked that he be reminded of the charge. The record shows that the charge was again read out and explained to the appellant in Kiswahili and he admitted to the charge and the court then entered a plea of guilty on each count. 30.On 12th May 2023 the facts as read out to the Respondent are clearly recorded on file together with his response thereto. From my consideration of these proceedings, the same in my view are a testament that the Hon Magistrate was very patient with the accused at all times during the hearing. Further, it is not lost on the court as the proceedings show that at every turn, even where the matter had been reserved for facts, before the court proceeded with the same, the charge was read over and explained to the appellant in his preferred language Kiswahili. This procedure was consistently applied by the Learned Trial Magistrate even up to the date that the impugned plea was taken. Counsel for the appellant submits that when the Appellant asked that he be reminded of the charge, the trial Magistrate erred in construing that to mean the Appellant intended to change his plea. 31.In addressing my mind to this submission, it is my very well considered opinion that if an accused before any court seeks that he be reminded of the charge, that the only legal and logical action that the trial court can and should take is read out and explain the charge afresh as it is already in the record of the court by way of the charge sheet to such an accused in their preferred language, enter their response and the plea as is appropriate. This is precisely what the Hon Magistrate did. This record of the trial court clearly demonstrates that the appellant was very well appraised of the going ons in the court by the trial Magistrate and was very much in tandem with the proceedings and I therefore find no merit on the assertion by the appellant that this was not done 32.Further to the above, this is a Respondent who had already actively participated I the proceedings all the way to the time he was laced on his defence. He changed his plea not once but severally as was appropriate to him. It cannot be said therefore that this is a person who did not understand the proceedings and was therefore prejudiced by the court not affording him a lawyer. In any event, the requirement that a lawyer be availed to accused persons is not applicable in each and every criminal case as was held by the Supreme Court in Rv Chengo & 2 others [Petition No. 5 of 2015] [2017] KESC 15(KLR). 33.This is a requirement that is usually only applicable in offences wherein the penalty is severe and mandatory or either and in my view these are usually those offences that attract the death penalty and/or life imprisonment. The offence that attracts a maximum sentence of 7 years’ imprisonment which sentence is also not a mandatory sentence is not such an offence that is sufficiently serious to demand the deployment of legal representation to an accused person at the state’s expense 34.The above is particularly so for reasons further, and of particular importance and especially with regard to this Appellant, that the plea of guilt upon which he was eventually convicted did not come in the early stages of the trial where it can be rightly said that an accused person is not familiar with not only his surroundings but also the court process, it came at the very tail end of the proceedings by which time the Appellant had actively participated in the trial as already herein summarised before eventually changing his plea at the defence stage, which then led to his conviction. This to my mind demonstrates that he was very well oriented in time and space in so far as the court process and the proceedings were concerned which then leads me to the conclusion that he was not at all prejudiced in any way for lack of Counsel. 35.In light of my conclusions herein, I am satisfied that the plea was taken very well in accordance with the provisions of Section 207 the Criminal Procedure Code and also in complete compliance with the requirements set out in the case of Adan v Republic herein cited. I therefore find no reason at all to fault the conviction entered into by the Trial Magistrate and the same is accordingly upheld. 36.On the issue of whether the sentence was harsh or excessive in the circumstances, I have considered the grounds in support of this submission. The Appellant was sentenced to serve 7 years’ imprisonment on each of counts 1 and 2 which sentences the court ordered run consecutively. In considering this sentence, this court needs to state firstly that the submission that there was no record to confirm the previous conviction is a non-issue in my view for reasons that the Appellant himself conceded that he was charged and sentenced to 4 years’ imprisonment in Criminal Case No. 80 of 2022 for a similar offence. 37.Secondly whereas the rule of the thumb is that an appellate court ought not to interfere with the discretion of the trial court in so far as the sentence meted out is concerned, in the instant case, I am persuaded that by pleading guilty to the charge, the Appellant did save the court the further effort of taking further evidence and then retiring to render its judgement. For this reason alone, notwithstanding the fact that he was not a first offender, he deserved that the court looks upon him with an eye of equity and treats him with some degree of leniency. In this regard, having considered the circumstances under which the offence was committed, I do uphold the sentence of 7 years’ imprisonment on each of count 1 and 2 but set aside the order that the sentences run consecutively and now hereby direct that the sentences run concurrently. 38.Right of Appeal 14 days READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 9TH JULY 2026E. OMINDEJUDGE6 | Page ELDORET HCCRA NUMBER E051 OF 2022