Png v Republic

5. That the complainant did not tell anyone about the incident since she was afraid. However, in the month of July 2024 the complainant visited her sister (PW2) AWN, who, together with her husband, NW, noticed that she looked plump. That (PW2) A’ husband N, interrogated her and she revealed that the appellant had raped her and was pregnant as a result thereof. 6. That (PW2) A took her to Mathari Hospital at Gilgil where she was examined and the matter reported at Gilgil Police Station. That subsequently (PW2) called the appellant and informed him that she had found a job for him and when the appellant went to see her he was arrested. 7. (PW3) ANN the complainant’s mother testified that (PW2) A informed her that the appellant had raped the complainant and she had become pregnant. That she was shocked by the heinous act of the appellant against her daughter and that she did not have any dispute with the appellant. 8. It suffices to note that after (PW3) Anne testified, the appellant opted to change his plea presumably after seeing her break down into tears uncontrollably. 9. The charge was read out to the appellant afresh and he pleaded guilty. The prosecution adopted the testimony of the complainant as facts relied on and in response the appellant stated that he slept with the complainant voluntarily, that it was not rape. 10. Subsequently, the appellant was convicted on his own plea of guilt and sentenced to serve a term of twenty (20) years imprisonment. 11. However, the appellant being aggrieved by the decision of the trial court filed a petition of appeal on 30th December 2024. But subsequently albeit without leave of the court filed amended grounds of appeal on 20th May 2025, based on the following grounds verbatim reproduced: 12. a. That the learned trial Magistrate erred both in law and facts by convicting the appellant in the present case yet failed to appreciate that the guilty plea was not unequivocal. b. That the sentenced imposed against the appellant is harsh and excessive as it did not take into consideration his mitigation and the circumstances of the offence. However, the respondent opposed the appeal based on the following grounds of opposition dated 12th May 2025, that states as follows: a. The elements of the offence of incest were proved beyond reasonable grounds. b. That the appellant pleaded guilty after hearing the ovenvhelming evidence presented by three prosecution witnesses. c. That the question of penetration was not in issue as the accused in, his own evidence to court admitted he had sexual conduct with the complainant willingly and that it was not rape. d. That the appellant failed to appreciate the fact that he was charged with the offence of incest and not rape, and as such consent was immaterial. e. That the appellant did not challenge the fact that there was a child born out of the sexual conduct he had with the minor who was his niece. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19331/eng@2025-11-20 2

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f. That PW2, was the appellant sister and this proved the element of the degree of consanguinity as a requirement in the offence of incest. g. That the sentence meted against the appellant was too lenient considering that the affair between the appellant and the victim started way back when the victim was still a minor. 13. The appeal was disposed of vide filing of submissions. The appellant submitted that, for a plea of guilty to be considered unequivocal its must strictly adhere to the legal procedures enshrined in statute and precedent. He cited Article 50(2)(b) of the Constitution which provides that an accused has the right to be informed of the charge with sufficient detail to answer it. He also referred the court to section 207 of the Criminal Procedure Code (Cap 75) Laws of Kenya which outlines the procedure of plea taking. 14. The appellant also relied on the case of, Adan v Republic [1973] EA 445 where the Court of Appeal outlined the procedure of recording a plea of guilty being inter alia that, the prosecution should state the facts of the case and the accused given an opportunity to dispute or explain them. 15. The appellant submitted that his plea was not unequivocal as the prosecution did not read out the facts of the case to him but simply stated that it was adopting the evidence earlier adduced. Further, the trial court did not ask him to confirm whether the facts were true or not and in any case his reply was a qualification of his actions and not an admission. 16. The appellant cited the case of; Peter Mutuku Ndotono vs Republic [2022] eKLR where the court stated that the prosecution merely adopting the complainant’s statement was insufficient and that the facts must be narrated clearly in open court. 17. He further placed reliance on the cases of; Asawani vs Republic (2023) eKLR, Wanjiru vs Republic (2020) eKLR and John Muiruri vs Republic [1983] KLR 445 where court held that, the facts read out must disclose an offence, that the accused must understand the charge and if he disputes the facts a plea of not guilty must be entered. 18. However, the respondent in response submissions dated 12th May 2025, argued that the prosecution was required to prove the components of the offence being that, there was sexual conduct between the perpetrator and the victim and the relationship between the appellant and the victim, and consent. 19. The respondent submitted that the prosecution through the evidence of the victim proved beyond reasonable doubt that there was sexual conduct between the appellant and the victim which resulted in the birth of a child on 6th October 2024. That the appellant did not challenge this evidence even in cross examination but gave a defence of consent. 20. Further, the prosecution proved beyond reasonable doubt that the victim was a niece to the appellant who was her uncle by virtue of the appellant being the brother to the (PW3) ANN victim’s mother. 21. On the issue of consent, the respondent submitted that the evidence of the victim explained in detail how the appellant grabbed her when she had come from the bathroom, dragged her to bed, sexually assaulted her and threatened her not to disclose it to anyone. Furthermore, that the sexual conduct begun when the victim was still a minor. 22. The respondent submitted that the appellant pleaded guilty after hearing the evidence of three (3) prosecution witnesses. That the charge was read out to him and he pleaded guilty. He was thereafter informed of the overwhelming evidence against him. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19331/eng@2025-11-20 3

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23. Lastly, the respondent argued that the sentence of twenty (20) years imprisonment imposed by the trial court is lenient considering that the appellant began his affair with the victim when she was still a minor and should have resulted in a sentence of life imprisonment. 24. At the conclusion of the arguments on appeal, I take note of the fact that the role of the 1st appellate court is to re-evaluate the evidence adduced in the trial court afresh and arrive at its own conclusion taking into account the fact that this court did not have the benefit of the demeanour of the witness. 25. In this regard, the court thus stated in the case of Okeno vs. Republic (1972) EA 32; “ 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.)” 26. 27. To revert back to the matter herein, the main issues to consider is whether; a. The plea of guilty entered for the appellant was unequivocal b. The sentence imposed is harsh or excessive. As to whether the plea was unequivocal, the law on plea taking is settled. In that regard, section 207 of the Criminal Procedure Code provide 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”. 28. Similarly, the Court of Appeal in the case of; Adan v Republic [1973] EA 445 stated that: “ 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 possible, then in a language which he speaks and understands. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19331/eng@2025-11-20 4

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the accused an opportunity to dispute or explain the facts or to add any relevant fats. 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 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, or course, be recorded.” 39. As regard the plea herein the record reveals that, when the accused opted to change his plea, the charge was read to him in Kiswahili and he understood the same by answering that; “it is true” and a plea of guilty was entered for the accused. 40. As regard the facts of the case, the court record reveals that, the prosecution relied on the evidence of (PW1) LW and in response, the accused answered that; “ I slept with L willingly. It was not rape” and the trial court went on to record that, the accused was convicted on his own plea of guilty. 39. The response by the accused to the facts was not unequivocal. He was as a matter of fact stating that, the sexual relationship between him and the complainant was consensual. In that case he was denying the offence and did not admit the facts in total. 40. Notably (PW1) testified that the appellant defiled her thus ruling out her consent to the sexual act wherein the appellant pleaded to the contrary. 41. It is evident the appellant did not plead guilty to the facts and the trial court could not have convicted him on the charge. Consequently, I quash as the conviction herein and set aside the sentence meted out. I direct that this matter be referred to the Chief Magistrate for fresh plea and further orders. The same be heard by a different court. 42. It is so ordered. DATED, DELIVERED, SIGNED ON THIS 20TH DAY OF NOVEMBER 2025. GRACE L. NZIOKA JUDGE In the presence of: The appellant present virtually Mr. Wanga H/B for Ms. Chepkonga for the respondent Ms. Hannah: court assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19331/eng@2025-11-20 5

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