Daniel Maeke Ndunge v Republic

Appellant took her where he sleeps in a different room. She slept on the bed and left him standing. Ahe narrated every activity that took place while she was at the Appellant’s home. She stayed there from 6/8/2023 to 9/8/2023. She testified that the Appellant defiled her. She stated that she raised her skirt and the Appellant removed his trouser. He had a short trouser inside. He removed his penis and inserted it in her vagina. The Appellant went on to do her and she told him that was it. 4. He then removed. They stayed for a while then he went for lunch. They went to his house and did the act on his bed. She had the PRC Form and Treatment Notes in court as well. They ate lunch at 5.00p.m. They stayed and at 6.00p.m, she told him to go for a motor bike to return her home. He did and took her home to Kimutwa. He left her outside her gate. Her younger brother saw her and informed her that she was being called. She found her mother preparing food. The mother asked her where she had been and she told her she had been in a young man’s place. The mother asked her which one and she told a young man. The mother said nothing and the following day they went to the chief who asked her the name of the young man and she told him it was Daniel Mueke, the Appellant. The chief referred them to Kimutwa Hospital for medical attention. She was examined and referred to Katheka Police. From there they were referred to Machakos Level 5 hospital where they were issued a PRC and treatments notes and P3 Form which were produced as exhibits later. 5. On cross examination by the Appellant, PWI stated that the Appellant did not force her. 6. The record shows that the trial magistrate then explained to the Appellant the details of the offence of defilement stressing that consent is not a defence to that offence and that he ought to ask questions that can exonerate him from the allegation but the Appellant maintained that he understood and admitted that he defiled cross examined her and thereafter admitted that he defiled stating "nilimnajisi mtoto wa shule-school girl” 7. The trial court questioned the Appellant if he understood the implication of what he was saying and he affirmed saying he knew it is not proper for him to have done that. The trial court explained to the Appellant the seriousness of the offence and the penalty being severe that he could be imprisoned for up to 15 years. The Appellant was asked whether he appreciated the same and he responded in the positive that he understood. 8. Again, the trial court inquired whether the Appellant understood what it means to have sexual intercourse with a girl under the age of 18 years and he answered yes, he understood. 9. The trial court further cautioned the Appellant that defilement is an offence that carries a serious sentence. The Appellant maintained that he understood and admitted to have committed the offence. 10. The substances of the main charge and alternative charge were read to the accused who pleaded guilty. The prosecution adopted the facts as testified by PWI and produced the PRC, treatments notes and P3 Form as exhibits. The Appellant was convicted on his own plea of guilty. The Prosecution indicated that the Appellant was a first offender and had no previous records. 11. The Appellant had nothing to say in mitigation and was sentenced to serve 20 years imprisonment on 7/12/2023. 12. Being dissatisfied with the decision of the trial court, the Appellant filed an undated Memorandum of Appeal. The Appellant seeks to appeal against both the conviction and sentence on the following grounds: a. that the learned Chief Magistrate erred in matters of law and fact by failing to observe that the evidence procured by the prosecution did not have any probative value. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14371/eng@2025-05-29 2

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b. that the learned Chief Magistrate erred in matters of law and fact by failing to find that the essential ingredients of the offence were not discharged against the appellant. c. that the learned Chief Magistrate erred in matter of law and fact by failing to find that the whole case was marred by material contradictions and inconsistencies which went to the root of the charges facing him. d. that the learned Chief Magistrate erred in matters law and fact by failing to find that the legal burden against the appellant was not established due to the weak evidence that was adduced. e. that the learned Chief Magistrate erred in matters of law and fact by failing to properly consider the cogent defence case which reasonably exonerated the appellant from the commission of the ill-fated offence. f. that the Hon Court imposed a sentence of twenty (20) years imprisonment which is manifestly harsh and unjust. 13. The appeal was directed to be canvassed by way of written submissions. Both parties complied by filing their respective submissions. 14. This is a first appeal. The duty of the first appellate court is to reconsider and re-evaluate the evidence before the trial court and make its own conclusions but bearing in mind that it did not see or hear the witnesses (see Okeno –vs- Republic 1972 EA). 15. I have carefully considered record of appeal, the grounds of appeal and the parties’ respective submissions. The single issue for determination is whether the appeal is merited. 16. The record shows that the Appellant was charged with the offence of defilement Contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. 17. In the alternative he was charged with committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. 18. The subject child is said to have been aged 12 years at the time she was defiled by the Appellant. 19. Section 8(1) of the Sexual Offences Act provides as follows regarding the offence of defilement: “ (1) 20. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.” Section 8(3) of the Sexual Offences Act provides as follow regarding sentence: “ A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years”. 21. In determining this offence, the court is required to consider whether the prosecution proved the following ingredients to the required standard: i. age of minority of the victim ii. proof of penetration and iii. the positive identification of the appellant as the perpetrator of the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14371/eng@2025-05-29 3

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22. The Appellant pleaded guilty to the above charges as read out to him. When the facts were adopted by the prosecution, he did not dispute them and accepted that they were true. PWI testified that she was 12 years old and her birth certificate was produced as PExt.l. She knew the Appellant thus was able to identify him positively by recognition and that he defiled her. The documentary evidence to support the defilement was produced as PExt.2-PRC Form, PExt.3- Treatment Notes and PExt.4- P3 Form. The Appellant was thus convicted on his own plea of guilt and was rightfully sentenced as well to serve 20 years imprisonment. 23. Section 348 of the Criminal Procedure Act bars appeals from subordinate courts where an accused was convicted upon plea of guilty except on the extent and legality of sentence by providing 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 and legality of the sentence. ' 24. The child victim in this case was confirmed to be aged 12 years. Section 8(3) provides that the imprisonment term for age of 12 and 15 years is not less that twenty (20) years. It is therefore my finding that the trial court in sentencing the Appellant was within the law and thus the sentence was legal, proper and correct. The sentence was within the provisions of the law as prescribed. 25. I must state that the grounds of appeal as raised by the Appellant in the Memorandum of Appeal to be misplaced and misguided the Appellant having pleaded guilty. Looking at the said grounds of appeal, the Appellant does not seem to challenge the process of taking of the plea of guilty. 26. I have taken a cautionary measure by considering whether the plea of guilty entered against the Appellant by the trial court was unequivocal. Section 207 of the CPC outlines the procedure that is to be followed during plea taking. It provides that: 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. 27. This Section provides that when an accused person pleads guilty the admission should be recorded as nearly as possible in the words he used and the accused sentenced. The complainant is also awarded an opportunity to outline to the court the facts upon which the charge is founded. In Jackson Wambua v Republic [20221 eKLR, Odunga J (as he was then) in quoting Ombena v Republic [1981] eKLR indicated that the Court of Appeal outlined the manner of recording plea of guilty by quoting: “ In Adan v Republic [1973] EA 445, the Court of Appeal laid down in the simplest and plainest terms the manner in which pleas of guilty should be recorded and the steps which should be followed. It is appropriate to set out the holding in full “ Held: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14371/eng@2025-05-29 4

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28. i. the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands; ii. the accused's own words should be recorded and if they are an admission, a plea of guilty should be recorded; iii. the prosecution should then immediately state the facts and the accused should be 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, must he recorded and change of plea entered; v. if there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused’s reply should be recorded. Justice Odunga further quoted K N vs. Republic [2016] eKLR, that: “ We think the court should also explain to the accused person the natural consequence of pleading guilty, the conviction and likely sentence”. 29. The same is supported by W. Korir, J in Abdallah Mohammed vs. Republic [2018] eKLR where he expressed himself as hereunder: “ A plea of guilty can only be entered in respect of an offence known to the law...ln a case where an accused person who is undefended pleads guilty to a charge, the court has a duty to ensure that the plea is unequivocal. As pointed out, the Appellant had no legal representation and the trial court ought to have taken steps to ensure that the Appellant understood every element of the charge and the facts read out to him. He also ought to have been warned, and that warning captured on record, that the offence he was about to plead to carried a prison sentence of not less than fifteen years. In my view, extra caution includes the question as to whether or not the facts as read out are true and whether the accused person would wish to make any comment. In fact, an accused person should be asked what he means by saying that the charge read to him is true. His explanation should then be captured on the record so as to form part of his plea. From the record, it is apparent that the Appellant was just but a lad aged 21 years and the trial court ought to have gone the extra mile to ensure he understood the consequences of entering a plea of guilty.' 30. Odunga J, held in Jackson Wambua v Republic [20221 eKLR that “ In this case the Court informed the Appellant that the charge facing him was a serious one. In my view that was not sufficient. The Court ought to go further and informed the accused what the seriousness of the offence was. Where the seriousness is the sentence which the accused is liable to face, the Court ought to point out that sentence. If it is the fine, then the Court ought to inform the accused of the fine. In this case the minimum prescribed fine is, on the face of it, heavy. Accordingly, the Appellant ought to have been informed of this.” 31. My perusal at the trial court’s proceedings on plea taking confirms that the procedure was duly followed when the Appellant pleaded guilty. The gravity of the sentence was explained to him before the charges https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14371/eng@2025-05-29 5

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were read over to him. The Appellant's plea of guilt is recorded in Kiswahili, a language he confirmed to understand and he responded that it is true. Once the prosecution re-read out the facts, the Appellant thereafter indicated the facts were true. 32. In the case of Olel v Republic [1989] KLR 444, it was held that:“ Where a plea is unequivocal, an appeal against conviction does not lie. Section 348 of the Criminal Procedure Code (cap 75) does not merely limit the right of appeal in such cases but bars it completely.” 33. It is therefore my considered view that the provisions of Section 8(1) as with Section 8(3) of the Sexual Offences Act No. 3 of 2006 and Section 207 (l) and (2) of the Criminal Procedure Code were duly followed by the learned magistrate. Following the authorities quoted above, it is my finding that the learned magistrate took further caution to explain to the Appellant the gravity of the offence and the sentence he would face should he wish to plead guilty. I find that the plea of guilty entered against the Appellant herein by the trial court was unequivocal and the sentence was legal. 34. Accordingly, I find the appeal to be lacking in merit and the same is dismissed. 357. Right of Appel 14 days. It is so ordered. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 29 MAY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 29TH MAY 2025 In the presence of : In person......... for Appellant Ms Agatha for.......... Respondent Milly Grace......... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14371/eng@2025-05-29 6

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