REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS HIGH COURT CRIMINAL APPEAL NO E018/26 SIMON MBITHI KILINGU VS THE REPUBLIC JUDGEMENT The appellant here was on 13th October 2025 charged with the offence of assault causing actual bodily harm. He pleaded guilty and was then jailed for 3 years. He filed an appeal through a petition of appeal dated 16th February 2025. He appealed against the sentence only on the following grounds: 1. That the learned trial magistrate erred in matters of law and fact by failing to observe that plea taking was not unequivocal contrary to section 207(1)(2) of the Criminal Procedure Code. 2. That the learned magistrate erred in matters of law and fact by failing to properly consider his mitigation, which is part of the trial process. 3. That the learned magistrate erred in law and fact by imposing a sentence of 3 years imprisonment, failed to consider non-custodial sentencing options without giving reasons. He prayed for: a. That the appeal on sentence be allowed. b. The sentence of 3 years imprisonment be set aside. c. The sentence be substituted with a non-custodial sentence. d. The sentence be reduced to time served. e. Grant any other order that the court deems just Parties then filed written submissions. APPELLANT'S SUBMISSIONS They are dated 27th April 2026. He submitted that justice is not only punishment but in proportion. Sentencing must reflect the constitutional values of fairness, dignity and equal protection under Article 27 and the right to fair trial under Article 50 (2) of the Constitution of Kenya 2010. He submitted that an early plea of guilt saves judicial time, spares witnesses and demonstrates contrition deserving recognition in sentence. Further, he claimed that he was not warned on the serious penal consequences of pleading guilty. He also submitted that his mitigation was not given due weight nor was his first offender status considered. This made the sentence to be disproportionate to the charges. RESPONDENT'S SUBMISSIONS They are dated 27th April 2026. It was submitted that the respondent opposes the appellant's appeal in its entirety by supporting the appellant's conviction and sentence.
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It was submitted that since this is a first appeal the court is mandated to re-analyze and reevaluate the evidence used before the trial court and come up with its own conclusion. It was their contention that the trial court followed the procedure of plea taking as was held in Adan versus Republic (1973) EA 445 hence the plea was unequivocal. Additionally, section 348 of the Criminal Procedure Code bars an appeal against a conviction from a plea of guilty except as to the extent and legality of the sentence. Considering the sentence provided under section 251 of the Penal Code was imprisonment for 5 years and the circumstances under which the offense was committed and the mitigating factors indicated in this case, the trial court did exercise its discretion and found it fit to sentence the appellant to three years imprisonment. The appellate court should not interfere with the exercise of such discretion unless it is proved that the trial court acted on some wrong principles, overlooked some relevant factors or failed to consider some relevant matters or the sentence is manifestly excessive. They urged the court to affirm the conviction and sentence. I have carefully considered the charges the accused faced, the plea of guilt entered by the accused person on the day of plea, the mitigation offered by the accused and the probation officers report dated 30th October 2025 which was filed in court. I noted that he is a first offender and did not waste the court's time in concluding the matter. I find the sentence to be harsh in the circumstances. I reduce it to 1 (one) year imprisonment. Read in open court (virtually) this 22nd July 2026 in the presence of: No appearance by appellant Before Hon Joyce Gandani Judge Prosecutor Machuma Court Assistant Ben
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