Michael Echiwa Enoi v Republic

6. On 9th September 2021, based on medical report dated 3rd September 2021 the court found the accused to be mentally fit to plead to the charges. On 14th September 2021, the charge was read to the accused and he pleaded guilty notably with one word “Yes”. The court however warned him of the consequences of pleading guilty but the accused maintained his plea of guilty. 7. However, the reading of the facts was deferred to 23rd September 2021 due to lack of complainant’s birth certificate. At the same time the trial court ordered for accused’s background report as the same was not reflected in the mental assessment report. 8. On 25th October 2021, the accused maintained his plea of guilty but as the court was proceeding with a lengthy hearing, the matter was deferred to the next day 26th October 2021. On that date, the accused took the plea afresh and plead guilty. Again he was warned of consequences of a plea of guilty but he maintained the plea of guilty. 9. The facts were read out to the accused and the accused confirmed the same to be correct. He was then convicted on his own plea of guilty. However, after offering his mitigation, the court expressed doubt as to whether the accused aware of the proceedings and ordered that a pre-sentence report be prepared and presented before sentencing the accused. 10. On 16th November 2021, a pre-sentence report was presented to court and upon considering the same and being satisfied that the accused was of sound mind, convicted him on what the court found to be an unequivocal plea of guilty and then sentenced him to serve fifteen (15) years imprisonment. The right of appeal within (14) days was explained to him. 11. However, the accused is aggrieved with the decision of the court and appeals against it on the following amended grounds of appeal: a. That the appellant pleaded guilty to the charge, an excellent mitigating factor in this case. b. That the appellant is deeply remorseful and seeks forgivingness from all. c. That the appellant is rehabilitated and ready to return to society. d. That the accused’s cogent mitigation was not given due weight for a fair trial under Articles 47 and 50 of the Constitution. e. That the appellant spent four months in remand custody and prays this to be factored in his sentence. 12. The appellant annexed to the afore grounds submissions and stated that the correct procedure for taking plea of guilty was followed and his plea of guilty was unequivocal. 13. However, he submitted that the sentence meted out was harsh and unconstitutional in the circumstances of his case. That this was a borderline case as no birth certificate was produced to prove the complainant’s age. That while an age assessment was conducted and her age determined to be sixteen (16) years old, an age assessment is not 100% accurate and contains a margin of error. 14. That it was therefore possible that the complainant could be an adult. In the circumstances, he should have benefitted from a lesser sentence under Article 50(2)(p) of the Constitution of Kenya, 2010. 15. The appellant further submitted that the sentence did not take into the fact that he pleaded guilty and saved the court’s time and resources. Further, that he is a first offender and was remorseful and pleads for leniency. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1584/eng@2026-02-13 2

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16. Furthermore, he has undergone rehabilitation while in prison as evidenced by certificate(s) for KNEC KEPSEA Exam and Bible Study from Lamp and Light Ministry he has acquired. 17. The appellant further submitted that, the trial court did not consider the four (4) months he spent in custody and asked the court consider the same while determining the appeal. 18. Finally, the appellant argued that life and mandatory sentences are unconstitutional and violate Article(s) 10 and 20 of the Constitution. He referred the court to the case(s) of Willy Karanja Mbuthia vs Republic HCCRA No. 25 of 2022 and Philip Mueke Maingi vs Republic Criminal Appeal No. 46 of 2020 where the High Court reduced a sentence of life imprisonment to ten (10) years. 19. He further cited the case of; Abdinasir Mohamed Ismail vs Republic HCCRA No. E035 of 2022 where the High Court reduced a sentence of forty (40) years imprisonment to fifteen (15) years imprisonment, and in Mohamed Aden Ali vs Republic HCCRA No. E017 of 2022 where the High Court reduced a sentence of twenty (25) years imprisonment to ten (10) years imprisonment. 20. In final submissions, the appellant prays that the court: - 21. a. Substitutes the fifteen (15) year sentence to one of ten (10) years b. Factor sin the remand period under section 333(2) of the Criminal Procedure Code. c. Orders the remainder of the sentence to be served under Community Service or for the appellant to benefit from a prison decongestion order. However, appeal was opposed vide grounds of opposition dated 23rd January 2025 in which the respondent states that: a. That the accused was convicted on his own unequivocal plea of guilty. b. That the manner of recording plea was in accordance to section 207 (1) and (2) of the Criminal Procedure Code. c. That the facts amount to an offence. d. That sentence meted was in accordance to the law/legal. e. That the appeal is misconceived and devoid of merit and ought to be dismissed forthwith and the conviction and sentence upheld. 22. The respondent in response submissions dated 23rd January 2025, argued that section 348 of the Criminal Procedure Code bars an appeal where an accused was convicted on his plea of guilty except to as to the legality of the sentence. The court was referred to the case of Olel vs Republic [1989] KL 444 where the court held that where a plea is unequivocal section 348 of the Criminal Procedure Code bars completely the right of appeal. 23. The respondent further cited the case of; Alexander Lukoye Malika vs Republic [2015] eKLR where the Court of Appeal laid out the circumstances where that the court can interfere with a plea of guilty being; where the plea is imperfect, ambiguous or unfinished, where the accused pleaded guilty as a result of a mistake or misapprehension of facts, where the charge against the accused discloses no offence known to law, or where the appellant could not in law have been convicted of the offence upon the admitted facts. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1584/eng@2026-02-13 3

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24. The respondent referred the court to section 207 of the Criminal Procedure and the Court of Appeal decision in the case of; Ombena vs Republic [1981] eKLR where the court discussed the way of recording a plea of guilty. 25. The respondent submitted that in the instant case the correct procedure was followed and that the appellant was convicted on his own plea of guilty in accordance with the law. Further, the facts that were read to him disclosed the offence. 26. The respondent argued that the accused sentiments herein indicate that he is not remorseful and urged the court to upheld the sentence of fifteen (15) years imprisonment meted out. 27. At the conclusion of the arguments by the parties on the appeal and in considering the appeal in the light of the material before it, and in particular grounds of appeal, it is noted that the appeal is basically on sentence. 28. In that regard, the accused was charged and convicted of the offence of defilement of a child aged sixteen (16) years. The complainant’s age was supported by the age assessment report and any arguments to the contrary is not tenable. 29. The relevant section that stipulates the applicable sentence is section 8(4) of the Sexual Offences Act which that: “ A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years”. 30. Based on the aforesaid, the sentence meted out of fifteen (15) years is lawful and/or legal and therefore, there is not basis of interfering with it. 31. However, pursuant to section 333(2) of the Criminal Procedure Code, any period the accused was in custody should have been considered while passing the sentence, there is no evidence of the same herein. I direct that the same be considered. 32. Otherwise the appeal is dismissed for lack of merit. 33. It is so ordered. DATED, DELIVERED AND SIGNED ON THIS 13TH DAY OF FEBRUARY 2026 GRACE L. NZIOKA JUDGE In the presence of: The appellant present virtually Ms Chepkonga for the respondent Ms Hannah: court assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1584/eng@2026-02-13 4

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