Kiratu alias Mwita & 2 others v Republic (Criminal Appeal 186 of 2020) [2026] KECA 771 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a missed plea-taking step does not automatically overturn a murder conviction if the accused suffered no real prejudice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial was fatally defective because plea was never formally taken from the appellants, breaching Articles 25(c) and 50 of the Constitution
- 2.Whether the omission to take plea occasioned a failure of justice or was curable under section 382 of the Criminal Procedure Code
- 3.Whether the conviction and sentence were otherwise supported by the evidence
Key legal issues
#Whether omission to take plea renders a criminal trial a nullity
No. Although plea taking is mandatory and failure to take plea violates Article 50(2)(b), where the accused understood the charges, was represented by counsel, cross-examined witnesses and mounted a defence without demonstrating prejudice, the omission does not occasion a failure of justice and is curable under section 382 of the Criminal Procedure Code.
The court examined the record and found the appellants were arraigned and informed of the murder charges, with plea deferred for mental assessment and assignment of counsel, but plea was inadvertently never taken when the trial resumed. Applying Dominic Maina Wanjiru and Moses Mbaya, the court found the charges were read to the appellants, they were represented throughout, cross-examined witnesses and defended themselves, and they failed to demonstrate any prejudice or compromise of their fair-trial rights. The irregularity was therefore procedural and curable, not a mistrial.
Whether the convictions for murder were supported by the evidence
Yes. Although not a ground of appeal, on re-evaluation the court found all essential ingredients of murder established: fact and cause of death, unlawful acts linking the appellants to the deaths, and malice aforethought.
The court, exercising its first-appeal duty to re-evaluate the evidence, found the trial court correctly held that the essential ingredients of murder were established. Post-mortem evidence proved death and cause; eyewitness testimony by PW1 and PW2, who knew the appellants, linked them to the fatal machete and sword attacks; and the level of depravity in the multiple deep cut wounds evidenced malice aforethought. The conviction was therefore supported by cogent evidence.
Legal principles established
#- Failure to formally take an accused person's plea, where the charges were explained to the accused, the accused was represented and fully participated in the trial, does not occasion a failure of justice and is curable under section 382 of the Criminal Procedure Code; it does not render the trial a mistrial or nullity.
- The law obligates the court of first instance to take a plea from the accused person, and failure to take plea violates Article 50(2)(b) of the Constitution, but such an omission is assessed for prejudice rather than automatically nullifying the trial.
- On a first appeal, the Court of Appeal must re-evaluate the evidence afresh and draw its own conclusions, making allowance for the fact that it neither saw nor heard the witnesses.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Both the conviction and sentence imposed by the trial court are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the Criminal Procedure Code (appeal against conviction and sentence for murder)
Relief refused
#Quashing of the convictions and setting aside of the thirty-year sentences, with acquittal
The failure to take plea did not occasion a failure of justice and was curable under section 382 of the Criminal Procedure Code; the murder convictions were supported by cogent evidence
Costs
No order as to costs is recorded in the judgment; the judgment is silent on costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We hold the view that the omission complained of did not occasion a failure of justice and is curable by section 382 of the CPC.
Article 50 guarantees every accused person the right to a fair trial and outlines seventeen distinct, minimum procedural rights. Failure to take plea violates Article 50 (2) (b) which provides for the right to be informed of the charge, with sufficient detail to answer it.
For the foregoing reasons, we find that this appeal is bereft of merit and dismiss it in its entirety. Both the conviction and sentence imposed by the trial court are accordingly upheld.
This being a first appeal, our duty, as has been repeatedly restated by this Court, is to scrutinize the evidence to see if it supports the findings of the High court and to draw our own conclusion on the matter, bearing in mind that we have neither seen nor heard witnesses and make due allowance for that.
Issues in the judgment
#The memorandum of appeal is dated 25th August 2025 and submissions dated 25th August 2025 and 18th August 2025, yet judgment was delivered on 24th April 2026 against a trial judgment of 20th May 2020 - an unusually long interval, though not internally contradictory.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiratu alias Mwita & 2 others v Republic (Criminal Appeal 186 of 2020) [2026] KECA 771 (KLR)", Case Analysis (2026). Criminal Appeal (first appeal from High Court at Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/771/eng@2026-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.