Skm v Republic

(5) That the learned trial magistrate failed in law by relying on prosecution evidence that was riddled with contradictions and discrepancies leading to selective judgment.” 3. The appeal was heard by way of written submissions. The appellant appeared in person while the state was represented by Prosecution Counsel, Makena Kaburu. 4. In brief the appellant submitted inter alia that: i. It is trite law that the burden of proof in criminal cases lies squarely with the prosecution and this burden never shifts. The standard of proof is beyond reasonable doubt; that the prosecution did not prove the three critical elements of the offence of defilement beyond reasonable doubt; penetration, positive identification of the assailant, and the age of the victim; ii. The evidence adduced by the prosecution, even considering the appellant’s subsequent change of plea, was woefully insufficient to establish penetration beyond reasonable doubt; iii. PW 2's unsworn statement that “Kioko inserted his penis in my buttock” stands largely uncorroborated by independent and credible evidence of actual penetration. His account of being unable to scream because his mouth was covered, and his statement that “he lay me down” during the act, are subjective and descriptive of the alleged assault, but do not inherently corroborate penetration; iv. The prosecution's own facts read out during the change of plea stated that the child was taken to Matuu Level 4 Hospital, examined, and a P3 form filled, with the injury classified as "harm." While a P3 form is important, the classification of "harm" alone does not conclusively prove anal penetration ; v. The prosecution failed to provide sufficient medical or other corroborating evidence to establish that actual penetration, as defined by the Sexual Offences Act, occurred. The evidence presented, particularly the "harm" classification in the P3 form and the "no DNA extracts" finding, point away from conclusive proof of penetration; that while the victim and his mother (PW1) identified the Appellant as "Kioko" and stated they knew him as a neighbour and uncle, and the victim pointed him out in the dock, the circumstances surrounding the alleged act raise questions about positive identification in the context of the alleged defilement; vi. That, PW1 explicitly stated under cross-examination: “I did not witness anything.” Her knowledge of the assailant came from what her child told her. Her testimony regarding the actual incident is therefore hearsay, relying on the child's statement, and not direct evidence of the Appellant committing the act. While the child's disclosure is crucial for alerting authorities, it does not, by itself, constitute direct witness identification of the specific act of defilement; vii. The identification of the Appellant as the assailant rests almost entirely on the child's disclosure to his grandmother and mother, and his subsequent unsworn testimony. While the child identified "Kioko" as his "uncle" and neighbour whom he knew, the precise details of the act, especially given the unsworn nature of his testimony, necessitate strong corroboration; viii. The child stated that the Appellant “closed my mouth “so he “could not scream ” This implies a struggle and close contact. However, the subsequent medical and forensic evidence (specifically, the absence of DNA) does not corroborate this close physical interaction in a way that would confirm the Appellant as the perpetrator of the alleged penetration; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5908/eng@2026-04-30 2

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ix. There is no independent witness who saw the Appellant committing the act of defilement. The identification of the Appellant as the person who took the child towards the river is present, but this is distinct from positive identification as the perpetrator of the sexual act; x. The Appellant submits that while he may have been with the child, the evidence does not unequivocally link him to the specific act of anal penetration beyond the child's unsworn statement, which itself requires corroboration. The lack of DNA evidence is particularly significant here as it fails to provide the objective, scientific corroboration of the Appellant's involvement in the sexual act; xi. Therefore, while the Appellant was known to the family and seen with the child, the crucial link between him and the act of defilement, specifically the alleged penetration, was not positively and independently established beyond reasonable doubt, especially given the limitations of the unsworn child testimony and the inconclusive forensic findings; xii. In light of the foregoing, the Appellant submits that: penetration was not proved beyond reasonable doubt, and positive identification of the Appellant as the perpetrator of the sexual act was not conclusively established. These failures constitute a fundamental miscarriage of justice, as the prosecution did not discharge its burden of proving the key ingredients of the offence of defilement beyond reasonable doubt. The conviction is therefore unsafe and ought to be quashed; xiii. Article 50 (2) (g) of the Constitution of Kenya, 2010, unequivocally guarantees to every accused person the right ”to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly”; xiv. The Appellant appeared in court on 6/10/2023 and 9/11/2023, stating his wish to change his plea to guilty. Crucially, the record does not indicate he had legal representation at this critical juncture. His previous counsel, Mr. Mwihia, had been discharged on 10/11/2022. The court merely stated that he was “warned of the consequences following the change of plea... and nevertheless still opts to change plea”; xv. A plea of guilty is an admission of all the essential elements of an offence. For a juvenile, or a layperson facing serious charges like defilement with a mandatory life sentence, the decision to plead guilty is of monumental importance. It requires a full understanding of the charges, the evidence, potential defences, and the consequences of such a plea. Without the benefit of legal counsel, such a plea cannot be considered truly informed or voluntary in the constitutional sense. The Appellant's unrepresented plea is a severe procedural defect; xvi. The failure to promptly inform the Appellant of his right to counsel and to ensure his continuous legal representation resulted in substantial injustice. When asked for mitigation, the Appellant simply stated “Nothing to say.“ This is a common outcome for unrepresented accused persons who are unaware of the importance of mitigation or how to present it effectively. A competent advocate would have presented the Appellant's age at the time of the offence, his family background, his desire to continue education, and the fact that he was a child in conflict with the law, all of which were crucial mitigating factors that could have influenced sentencing; xvii. The breach of Article 50 (2) (g) of the Constitution is not a mere technicality; it strikes at the heart of the fairness of the trial. A trial where an accused, especially a youthful one facing a life sentence, is largely unrepresented or inadequately represented, cannot be deemed a fair trial; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5908/eng@2026-04-30 3

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xviii. For a plea of guilty to form a sound basis for conviction, it must be voluntary, unequivocal, and informed. This is a cornerstone of a fair trial. The Appellant submits that his plea of guilty on 9/11/2023 failed to meet these fundamental criteria due to a confluence of factors. xix. The Appellant subsequently attended court on 6/10/2023 and 9/11/2023, stating on both occasions: “I wish to change plea”. Crucially, at these critical moments when he decided to alter his plea from "not guilty" to “guilty,” the Appellant was unrepresented by legal counsel. xx. The Appellant was arrested on 29/7/2019. The trial process dragged until his conviction in 2023. Prolonged trial process, especially for a youthful individual (16 years old at the time of arrest), can exert immense psychological pressure. An accused person, exhausted by the legal process, may be coerced, explicitly or implicitly, into pleading guilty simply to bring the proceedings to an end, even if they maintain their innocence or have a plausible defence. This creates a strong presumption of involuntariness. xxi. Even after the "guilty" plea was entered, the facts read out by the prosecution did not fully or unequivocally establish the core elements of defilement, particularly penetration. The prosecution's facts stated: “The child was taken to Matuu Level 4 hospital. He was examined and P3 form filled. Injury classified as harm” Crucially, it further stated: “The subject had a discharge. He was taken to the government chemist and examined. No DNA extracts were found.” While the P3 classified “harm,” this does not conclusively prove penetration, which is the gravamen of defilement. The absence of DNA, explicitly admitted by the prosecution in the facts, directly contradicts and undermines the allegation of penetration, which is central to the charge of defilement under Section 8 (1) (2) of the Sexual Offences Act. xxii. When the facts read out do not fully or unequivocally disclose the commission of the offence, or worse, include information that contradicts an essential element, the court has a duty to reject the guilty plea and enter a plea of "not guilty." The Learned Trial Magistrate's acceptance of “Facts correct" from an unrepresented Appellant, despite the glaring inconsistency regarding penetration, was an error. xxiii. When given an opportunity to mitigate, the Appellant stated: “Nothing to say.” This is a strong indicator of an unrepresented and possibly overwhelmed individual who either did not understand the purpose of mitigation or felt too hopeless to offer anything. A genuinely voluntary and informed plea often leads to a coherent mitigation, reflecting insight and regret. The Appellant's silence, coupled with the other factors, further supports the argument that his plea was not truly voluntary in a meaningful sense. xxiv. The totality of the circumstances surrounding the Appellant's change of plea demonstrates that it was not a voluntary, informed, and unequivocal admission of guilt. The Appellant was unrepresented during this critical decision, and the very facts read by the prosecution cast serious doubt on the crucial element of penetration. A conviction based on such a flawed plea is inherently unsafe and constitutes a grave miscarriage of justice. The subsequent imposition of a life sentence, especially on an individual who was a minor at the time of the alleged offence, without proper legal guidance and an adequately articulated mitigation, is harsh, disproportionate, and unconstitutional. xxv. It is a well-established principle of criminal law that the prosecution's case must be consistent and coherent. Material contradictions and inconsistencies, particularly those touching on the core elements of the offence, raise reasonable doubt and must lead to an acquittal. The Appellant submits that the record is replete with such flaws. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5908/eng@2026-04-30 4

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xxvi. The gravamen of the charge of defilement under Section 8 (1) (2) of the Sexual Offences Act is penetration of the anus. The evidence on this crucial element was highly contradictory and inconclusive. PW 2 (the victim), in his unsworn statement, testified that “Kioko inserted his penis in my buttock.” This is a direct allegation of penetration. However, the medical evidence presented by the prosecution directly contradicted this assertion of definitive penetration. The prosecution's own facts, read out during the plea change, stated that the P3 form classified the injury as "harm." More critically, the Government Chemist report stated: “No DNA extracts were found.” xxvii. An allegation of anal penetration, especially one that caused “bruises in his anal area" and redness as observed by PW 1, would reasonably be expected to leave some form of forensic trace, particularly if penetration, as distinct from mere touching, occurred. The categorical finding of "No DNA extracts" from the Government Chemist directly casts doubt on the occurrence of the alleged penetration as described. The classification of "harm" is also less indicative of deep penetration than other medical terms might be. xxviii. The Learned Trial Magistrate failed to reconcile this stark contradiction between the child's unsworn statement of penetration and the definitive forensic finding of no DNA, which goes to the very essence of the offence. The absence of DNA should have prompted a deeper inquiry into the veracity of the penetration claim. 5. xxix. Beyond penetration, other significant inconsistencies undermined the prosecution's overall narrative. PW 1 testified that the Appellant and the child "disappeared as they approached the river.” PW 2, the victim, stated the incident occurred “at my uncle's when he did that" and “while in the thicket/bush at my uncle's.” He further clarified “We stay apart with my uncle.” xxx. The testimony of a child witness in sexual offence cases, especially where the child is young, must be treated with utmost caution. Strict adherence to procedural safeguards, particularly the voir dire examination, is essential to ensure the reliability of such evidence. xxxi. The Learned Trial Magistrate's failure to conduct a thorough voir dire examination that established the victim's understanding of the duty to speak the truth, coupled with the complete absence of articulated reasons for believing the unsworn testimony and the lack of independent corroboration (indeed, contradiction by forensic evidence), renders the victim's evidence unreliable. In regard to the sentence, the appellant submitted inter alia that: a. The Judiciary Sentencing Policy Guidelines 2023 provide a comprehensive framework for sentencing, emphasizing proportionality, individualized justice, and the consideration of both aggravating and mitigating factors. The Learned Trial Magistrate's sentencing decision explicitly ignored several fundamental mitigating factors applicable to the Appellant. b. The record clearly states that on 5/3/2020, the prosecutor confirmed the Appellant's age: “He is 16 years. At time of arrest, he was in class 8 at [Particulars Withheld] School.” The alleged offence occurred on 28/7/2019, meaning the Appellant was either 15 or just turned 16 at the time of the incident. This categorizes him as a child in conflict with the law under the Children Act and international instruments, even if tried in an adult court. c. The Judiciary Sentencing Policy Guidelines (2023), as well as general principles of criminal justice, mandate that the age of an offender, particularly a minor, is a primary mitigating factor. Children have diminished culpability compared to adults, greater capacity for rehabilitation, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5908/eng@2026-04-30 5

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and are entitled to special protection. The life sentence imposed utterly disregarded this fundamental principle. 6. d. The trial court, by imposing a life sentence applicable to adult offenders without any apparent consideration for his age and juvenile status, failed to treat the Appellant as a child in conflict with the law, thereby denying him the special considerations and rehabilitative focus inherent in juvenile justice principles. e. The Learned Trial Magistrate's imposition of a life sentence on the Appellant was made in complete disregard of crucial mitigating factors, particularly his age at the time of the offence (16 years), his disadvantaged background, and his demonstrated desire to continue his education. The court's finding of "no remorse" based solely on the Appellant's silence was unfair, especially given his unrepresented status during the plea change and sentencing. This failure to properly consider and apply the principles of individualized sentencing and juvenile justice, as enshrined in the Judiciary Sentencing Policy Guidelines 2023, renders the sentence unlawful, unconstitutional, and manifestly excessive. f. Sentencing is a nuanced exercise that requires a delicate balance between punishment, deterrence, rehabilitation, and the specific circumstances of the offender. The imposition of a life sentence on a 16-year-old at the time of the offence, despite the gravity of the charge, was a fundamental misdirection of discretion. g. The Children Act and international conventions such as the UN Convention on the Rights of the Child (CRC), which Kenya has ratified, mandate special treatment for children in conflict with the law. Children are presumed to have a lesser degree of moral and criminal culpability than adults due to their evolving maturity, impulsivity, and susceptibility to negative influences. h. The primary aim of sentencing child offenders is their rehabilitation, reintegration into society, and welfare, rather than purely punitive or deterrent measures. Imprisonment should be a measure of last resort and for the shortest appropriate period. Life imprisonment for a child, unless under truly exceptional and narrowly defined circumstances, is generally frowned upon as it forecloses the possibility of rehabilitation. i. The Learned Trial Magistrate's imposition of a life sentence on the Appellant was a severe misapplication of sentencing principles. By failing to recognize and give due weight to the Appellant's juvenile status, his socio-economic background, his potential for rehabilitation, and the particular nuances of the evidence, the court condemned a young individual to an irreversible fate without fulfilling its duty to administer justice in a holistic and humane manner, as guided by the Judiciary Sentencing Policy Guidelines 2023 and other progressive jurisprudence on juvenile justice. The sentence is, therefore, demonstrably unjustified, harsh, and excessive. For the state it was submitted that the proceedings show that the Appellant was convicted on his own plea of guilty and that therefore Section 348 of the Criminal Procedure Code bars an appeal on conviction. Further, that the plea of guilty was unequivocal. Counsel submitted that in the case of Alexander Likoye 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5908/eng@2026-04-30 6

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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.” Counsel submitted that the Appellant’s plea of guilty was unequivocal owing to the fact that before conviction: 7. i. The charges were read over to the Appellant in Kiswahili a language he understood; ii. The trial magistrate warned him that the offence was serious before he entered his plea of guilty; iii. The facts constituting the offence were read out to the Appellant; and iv. In addition to this, before changing his plea to that of guilty, the court had taken the evidence of two witnesses including the complainant therefore the Appellant was aware of the nature of the charges against him. Counsel submitted that the sentence passed was within the law and should be upheld. That, the offence of defilement is provided for under Section 8(2) of the Sexual Offences Act which states: “ Section 8(2) a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” 8. Further, that in the Supreme Court case SC Petition No. E018 of 2023 – Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) the court pronounced itself on the issue of minimum sentences under the Sexual Offences Act as follows: “ Returning to the issue of the constitutionality or otherwise of minimum sentences under the Sexual Offences Act and discretion to mete out sentences under the said Act, we note that the Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. We find this approach problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below.” 9. Counsel contended that in light of the holding by the Supreme Court the trial court was within the law in sentencing the Appellant to life imprisonment since this is the minimum sentence for the offence. Therefore, the sentence against the appellant is sufficient and appropriate. Counsel urged this court to dismiss the appeal and uphold the sentence imposed by the trial court. Analysis and determination 10. The appellant’s conviction and subsequent sentence of life imprisonment arise from an own plea of guilty. Having carefully considered the able submissions by both sides, the record of the court below and the law, the following issues arise for determination: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5908/eng@2026-04-30 7

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1. Whether the conviction is appealable. 2. Whether by imposing the sentence of life imprisonment the learned magistrate violated the rights of the appellant who was a child when he committed the offence. 3. Whether this court ought to set aside the conviction and sentence. Issue (i) whether the conviction is appealable. 11. The issue of whether or not an appellate court can interfere with a conviction arising from a plea of guilty is guided by Section 348 of the Criminal Procedure Code which states: “ 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.” 12. However, the courts have over time developed the law and it is now trite that an appellate court has jurisdiction to look into the manner the plea was taken in order to determine whether the plea was unequivocal and to interfere where it is not. In the case of Alexander Likoye Malika v Republic [2015] eKLR, for instance the court stated: “ 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.” 13. The above finding is in consonant with the accused person’s right to fair trial as enshrined in Article 50 of the Constitution and more so where the accused person is faced with a serious charge and did not have the benefit of legal representation. 14. It is my finding therefore that I am justified in revisiting into the plea in order to consider whether it accords with the principles set out in the case cited above and to quash the conviction should it fall short of the standard required by law. 15. Having considered the record of the court below, I note that the appellant changed his plea after the evidence of the victim and his mother had been taken. During those proceedings he was represented by an Advocate who had been instructed by the court. The record indicates that the said advocate withdrew from the case after the appellant absconded. He had been freed on a free bond with the requirement of a relative depositing an Identity card and signing a recognizance of kshs.50,000/-. The bond was later reinstated when he turned up in court but was later cancelled after he absconded again and it was after that the advocate withdrew. It is therefore correct that the appellant no longer had legal representation when he changed plea. It is also correct that his bond had been cancelled and he had been remanded. However, it is also clear that the court allowed some time to pass from the date when the appellant intimated that he wished to change plea (6th October 2023) to the time it allowed him to do so (9th November 2023) . This I believe was to give the appellant time to think it over. In fact the court cautioned him/warned him of the consequences of pleading guilty. I am not therefore convinced that he changed plea in order to escape from the conditions of remand or because the trial dragged. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5908/eng@2026-04-30 8

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16. Moreover, I am also satisfied that the Appellant’s plea was voluntary. He had already heard the evidence of the victim and so he knew exactly what he was pleading to and so the allegation that the facts did not disclose the offence charged have no basis. 17. That, the evidence was inconsistent and contradictory is not borne by the record. The victim was very clear and steadfast in narrating what the appellant did to him and hence the Appellant was clear in his mind that he was pleading guilty to what the victim had told the court if not to the facts read by the prosecutor. The contents of the P3 form are not what prove the offence of defilement but the evidence of the victim. (see Section 124 of the Evidence Act). It was sufficient therefore that the evidence disclosed that the appellant led the victim to a bush and defiled him. In the case of Bassita v Uganda SC Criminal Appeal No.35 of 1995, the Supreme Court of Uganda stated: “ The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victims own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victims evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.” 18. Had the appellant not pleaded guilty, the prosecution would have had the advantage of the evidence of the victim but in this case the appellant upon listening to the facts and having earlier heard the evidence of the victim stated the facts were correct. I am satisfied that the plea was unequivocal and that the resultant finding of guilty and the conviction was sound and the there is no reason to interfere with the same. Issue No. 2: Whether by imposing the sentence of life imprisonment the learned magistrate violated the rights of the appellant who was a child when he committed the offence. 19. The Appellant argues that the sentence was excessive given that he was a child when he committed the offence and that the sentence violated his rights. It is however instructive that whereas he was a child at that time, he was already an adult when he was sentenced and the court could no longer deal with him as a child. The court was empowered to deal with him in any other lawful manner. See section 191(1)(l) which provides as follows:“ In spite of the provisions of any other law and subject to this Act, where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more of the following ways—……of the Children’s Act which provides:…… ………. (l) 20. In any other lawful manner.” Accordingly, this court is not persuaded that the sentence violated his rights as a child. It is also not correct that the sentence overlooked the Sentencing Policy Guidelines. It was imposed within the law and it is now clear that sentences that are meted under the Sexual Offences Act are irregular. This is as held by the Supreme Court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (supra) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5908/eng@2026-04-30 9

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cited by learned prosecution Counsel. Similarly in the case of Republic v Julius Kitsao Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) where the court stated:“ (1) Whether the Court of Appeal Erred in Law by Substituting the Life Imprisonment Sentence with 40 years Sentence thereby Usurping the Legislative Powers to Define Sentences. (67) Article 94 of the Constitution provides that legislative authority is derived from the people and, at the national level, is vested in and exercised by Parliament, while every court within the constitutional framework has the authority to determine the constitutionality of a statute. Article 165(3)(b) grants the High Court original jurisdiction to determine the question whether a right or fundamental freedom under the Bill of Rights has been denied, infringed, violated or threatened. The Court of Appeal, when acting within its appellate jurisdiction, is empowered to scrutinize and interpret the constitutionality or otherwise of a statute, the issue equally having been canvassed at the first instance before the High Court. The court's role with regard to the constitutionality of a statute is therefore confined to its interpretation and adjudication. (68) Courts cannot therefore extend their determination to rectifying or amending the statute in question, as this would contravene the doctrine of separation of powers, which delineates the functions of the judiciary, legislature, and executive. Courts must exercise caution when crafting remedies to avoid overstepping their judicial mandate and intruding upon legislative functions by prescribing or enacting amendments. When courts recognize the need for legislative intervention, it is both proper and imperative for them to recommend such measures to the appropriate authorities for adoption. As a court we have invoked this remedy in various instances; in Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR) we suggested the consideration of reforms over the recourse parties have upon the declaration of trust by the courts and how to actualize the same, especially regarding the aspect of shareholding. In Malcolm Bell v Daniel Toroitich Arap Moi & Board of Governors Moi High School Kabarak (Application 1 of 2013) [2013] KESC 23 (KLR) Hon. Justice Kaplana Rawal, DCJ in her concurring opinion made recommendations to amend section 16 of the Supreme Court Act. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) we urged CAK to set a timeline for the digital migration. In National Bank of Kenya Limited v Anaj Warehousing Limited (Petition No.36 of 2014) [2015] KESC 4 (KLR) we suggested appropriate legislative action to be taken to address the gaps and inconsistencies apparent in the Advocates Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5908/eng@2026-04-30 10

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(69) 21. We therefore find no difficulty in finding that the Court of Appeal erred in law by substituting the life imprisonment sentence with a 40-year sentence, thereby usurping the legislative power to define sentences.” Having come to the conclusion that the plea of guilty was unequivocal and that the sentence imposed by the learned magistrate was lawful, I find no merit in this appeal. The same is dismissed and the conviction and sentence are upheld. It is so ordered. JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 30TH DAY OF APRIL 2026. E. N. MAINA JUDGE In the presence of: The Appellant in person at Kamiti Maximum No appearance for the State Mary - Court Assistant/Interpreter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5908/eng@2026-04-30 11

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