Oluoch v Republic (Criminal Appeal E037 of 2024) [2025] KEHC 17702 (KLR) (27 November 2025) (Judgment) Neutral citation: [2025] KEHC 17702 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MOMBASA CRIMINAL APPEAL E037 OF 2024 WM KAGENDO., J NOVEMBER 27, 2025 BETWEEN WILSON OLUOCH ................................................................................. APPELLANT AND THE REPUBLIC ................................................................................... RESPONDENT (Being an appeal from the conviction and sentence in Mombasa Chief Magistrate’s Court Sexual Offence Case No. E039 of 2024, delivered by Hon. G. Ollimo on 15th March 2024) JUDGMENT 1. The appellant was charged with the offence of sexual assault contrary to Section 5(1)(b) as read with Section 5(2) of the Sexual Offences Act No. 3 of 2006. 2. The particulars were that on the 13th day of March 2024, in Changamwe Sub-County within Mombasa County, the appellant intentionally and unlawfully caused his fingers to rub the vagina of RA., a girl aged 1 year and 11 months. 3. The charges were read to the appellant, he pleaded guilty, the facts were read to him, and he was convicted on his own plea of guilty. 4. He filed the present appeal asserting that he was not warned of the consequences of pleading guilty to the charges. He was sentenced to twenty (20) years’ imprisonment and informed of his right to appeal within 14 days. 5. The appellant contends that during the trial process the court had a constitutional duty under Article 50(2)(g) to inform him of his right to legal representation. He states that he was not informed of this right and, being unrepresented, he did not understand the consequences of the plea or the nature of the sentence likely to be imposed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17702/eng@2025-11-27 1
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6. He argues that this omission prejudiced him as he was not adequately informed or prepared to understand the implications of his plea. 7. The appellant submits that sentencing is a matter of judicial discretion which must be exercised judiciously and in accordance with sound legal principles. 8. Section 5(1)(b) as read with Section 5(2) of the Sexual Offences Act prescribes a minimum sentence of ten (10) years’ imprisonment, which may be enhanced to life imprisonment. He states that his guilty plea was an indication of remorse and should have been taken into account. 9. He relied on the cases of Shadrack Kipchoge Kogo v Republic, Ogolla s/o Owuor v Republic [1954] EACA 270, Bernard Kimani Gacheru v Republic [2002] eKLR, and the Sentencing Policy Guidelines (2016). 10. He further cited Republic v Versherowsky (1912) CCA 28 TLR 263, Shadrack Kipkoech Kogo v Republic, Eldoret Criminal Appeal No. 253 of 2003, and Bernard Kimani Gacheru v Republic (supra) on the principles for appellate interference with sentence. Analysis And Determination 1. This being a first appeal, the Court is obligated to re-evaluate the entire evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses (see Okeno v Republic (1972) EA). 2. The issues for determination are: a. Whether the plea of guilty was unequivocal; and b. Whether a retrial is appropriate. 3. The appellant seeks to set aside his conviction on grounds that he was not warned about the consequences of pleading guilty to a charge carrying a potentially severe sentence. 4. The appellant does not dispute that the charge, particulars and facts were read to him in a language he understood. 5. The charge sheet and the detailed particulars clearly disclosed the offence of sexual assault under Section 5(1)(b)(2) of the Sexual Offences Act. 6. The Court of Appeal in John Muendo M. v Republic [2013] eKLR, applying Adan v Republic [1973] EA 445, restated the proper procedure for plea taking. 7. Courts must exercise caution in accepting pleas of guilty where the accused is unrepresented and where the offence attracts a severe penalty. See Abdalla Mohammed v Republic [2018] eKLR and Simon Gitau Kinene v Republic [2016] eKLR. 8. The offence before the trial court carried a minimum of 10 years’ imprisonment and a possible maximum of life imprisonment. The trial court was therefore duty-bound to warn the appellant of the consequences of pleading guilty. 9. In Elijah Njihia Wakianda v Republic [2016] eKLR, the Court of Appeal held that the elements of a proper plea are incomplete if the accused is not informed of the severity of sentence likely to follow a guilty plea. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17702/eng@2025-11-27 2
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10. Similarly, in Fidel Malecha Weluchi v Republic [2019] eKLR, it was held that Article 50(2) of the Constitution requires that an accused must understand not only the elements of the offence but also the consequences of the plea. 11. In Bernard Injendi v Republic [2017] eKLR, the court emphasized that failure to warn an unrepresented accused of a lengthy sentence vitiates the plea. 12. The appellant was unrepresented. The trial court did not warn him of the heavy sentence attached to the offence. This omission constituted a breach of Article 50(2) of the Constitution. 13. The plea was therefore not unequivocal. 14. The conviction entered against the appellant is hereby quashed. 15. The sentence of twenty (20) years’ imprisonment is accordingly set aside. Retrial 16. The remaining issue is whether a retrial should be ordered. The principles governing retrial are set out in Obedi Kilonzo Kevevo v Republic [2015] eKLR and Muiruri v Republic (2003) KLR 552. 17. A retrial should be ordered where the interests of justice require it and where it will not occasion injustice to the appellant. Factors include: The seriousness of the offence,The age of the complainant,Whether the defects in the previous trial were attributable to the prosecution,The length of time already spent in custody. 18. In Opicho v Republic (2009) KLR 369, the Court held that a retrial is appropriate where the appellant has not been in custody for a long period, and the charge is serious. 19. In the circumstances of this case, balancing the rights of the minor victim and the appellant, and noting that the appellant has been in custody for one year, a retrial is appropriate. Orders 20. The conviction is hereby quashed, and the sentence of 20 years’ imprisonment is set aside. 21. The appellant shall be retried before the Chief Magistrate’s Court at Mombasa before a different magistrate. 22. The matter shall be mentioned on 9th December 2025 before the Chief Magistrate, Mombasa, for directions regarding the retrial. DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE VIA MS TEAMS THIS 27TH DAY OF NOVEMBER 2025. HON. LADY JUSTICE W. K. MICHENI JUDGE In the presence of: Appellant in person Mr. Sirima for the State Bebora – Court Assistant Signed By/for: HON. LADY JUSTICE WENDY MICHENI THE JUDICIARY OF KENYA. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17702/eng@2025-11-27 3
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MOMBASA HIGH COURT HIGH COURT CRIMINAL DATE: 2025-11-27 15:32:13 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17702/eng@2025-11-27 4
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