Richard Lokaale v Republic

became known to her that the accused had another home at Nawantoss. She was left in a house within the homestead of the accused, with Ejem who tried to rape her but she fended him off. However the appellant was summoned, came and pinned the victim down as the said Ejem penetrated her. The two tore her underwear in the course of the act. She felt pain but the accused held her mouth so that she could not scream. 4. The next day the two men took her to a place called Letea in a home whose owner she did not know. In that home the three stayed till morning. In the morning Ejem left on a motorcycle and victim remained with the appellant. 5. That evening the appellant took the victim on a motor cycle to Kakuma and booked at a lodge house in a room with two beds. The two entered the separate beds but during the night the appellant demand to be paid back for the food and water consumed by the victim. Despite resistance by the victim the appellant forced himself onto her and defiled her. Other than physical force, the appellant had a gun and threatened the victim with harm. 6. In the morning the appellant left towards town and the victim also went by the gate of the lodge house and met a man from her village. The man was called Sospeter Epur Ekepor PW2. The man who was surprised to meet the victim at Kakuma, went into the room and saw a gun in the room. The victim showed him what had been her aboard with appellant the previous night. The man locked the room with a padlock and notified the police leading to the arrest of the appellant. She reiterated that it was the appellant who defiled her at Kakuma while Ejem had done so earlier with assistance of the appellant. 7. Upon cross-examination, the victim was adamant that it was the appellant who beat and defiled her at Kakuma even though Ejem had also assaulted her earlier. 8. The 2nd witness was the said Epur Ekipor. He told the court that on the 18/2/2024, he had gone to work at Prime Bet in Kakuma. That before he could open the door to the premises, he had somebody call him by name. When he turned to see who it was, he saw the victim who narrated to him how she had been violated and was crying as she did so. She pointed at the appellant who was then leaving and told the witness that the appellant had a gun and NPR uniform inside the room. The witness reached for a padlock and locked the room then called for police assistance. 9. The appellant came back and demanded to know why and who had locked the door to the lodge room. The witness confronted the appellant directing to know who brought the girl there and the appellant conceded to have brought her with an explanation that he was assisting her go to Lokichoggio. An officer came and both asked the appellant to accompany them to the police station. He agreed and all including the victim went to the station and made a report. The party went back to the room; removed the gun and uniforms and the accused was put under arrest. The witness identified the appellant as the person who was arrested at the lodge house on that day. 10. Upon cross-examination the witness told the court that he was alerted of the victim’s plight by the victim herself and that in the room was recovered a gun and NPR uniforms belonging to the appellant. 11. PW3 was Kennedy Oguchi Nyangene, a Clinical Officer who attended court to produce a P3 form completed by his colleague, Mercline Moraa, who had left employment and could not be traced without undue hardship. With the leave of the court, he produced the P3 which stated that the victim had gone to Kakuma Mission Hospital with a history of having been defiled. 12. Examination revealed that the neck and head were normal while the thorax, abdomen and upper limbs had multiple injuries approximated to be one week old. The thighs were bruised, hymen broken and there was whitish discharge from the vagina. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1611/eng@2026-01-27 2

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13. HVS, HIV and pregnancy tests were negative just as no spermatozoa was seen. An age assessment returned an age of 15 years. He produced the P3 form, age assessment report and receipts for payment to the facility as exhibits. 14. On being cross-examined, the witness told the court and he reiterated that the victim had multiple injuries on her body more specifically her thighs which confirmed defilement with hymen absent. 15. Mr Maiyen Ibuya Makadeli, an NPR Officer, testified as PW4. His evidence was that on the 18/2/2024 he was in church when his phone rang. He rushed out to receive the call and received the information that a man had taken a child into a lodge house within Kakuma Town. He was given direction of the place and rushed there immediately. He met the accused whom he identified as an NPR Officer. He asked him to accompany him to the police together with the girl, and the appellant obliged. 16. Upon reporting at the Police Station, the police led the team back to the lodge house inside which was found a gun assigned to the appellant. He identified the appellant as the person he assisted to have arrested. 17. On being cross-examined by the appellant, the witness told the court that he did not arrest the appellant but just asked him to go with him to the police station because appellant was his boss. 18. The last witness, PW5 was No 25XXXX PC Edung Jackline stationed at Kakuma Police station, who was assigned as the investigating officer for the case on 18/2/2024. She met both appellant and PW1 and booked the appellant while rushing PW1 to hospital at Kakuma Mission Hospital where a P3 form was filled. She said the victim had a lot of pain and was thereafter released to the uncle. 19. The victim visited the Police Station the next day and had her statement recorded. In the statement, she narrated how he came into the hands of the appellant and what was done to her by the appellant under the pretence that he was taking her back home in Lokichoggio. 20. When cross-examined by the appellant, the officer said that the accused was found with the child in a lodging and was the last person to defile her. 21. The prosecution closed its case with the five witnesses after which the court evaluated the evidence and concluded that a prima facie case had been established hence appellant was put on his defence. 22. The appellant elected to give sworn evidence. He said that he was a resident of Oropoi village but with another home at Lotekelei. He recalled a day he had taken his cattle to graze only to come back home and find three men, two of whom were NPR Officers, with a woman at home. 23. He inquired from the wife the identities of the strangers and the wife told her that one was her brother and his two friends. He went to sleep till next day when he talked to his brother in law, Ejem about where he came from and his destination and the said Ejem told him that the relatives of the girl were pushing him hence he wanted a place to settle with the girl away from the home because the matter had been reported at Lokichoggio Police Station. 24. The said Ejem offered to pay fare to the place so that he elopes with the girl and the appellant facilitated their flight to the home of one Khamoni at Nawantosi. The said Khamoni gave to Ejem a place to stay with the girl while at Nawantosi. 25. Ejem told the appellant that people around there knew him hence he was to take him with the girl to a place called Pokoton. 26. The appellant and Ejem, while armed with guns boarded a motor cycle belonging to one Eper for Kakuma from where Ejem proceeded to Naros, past Lokichoggio but the appellant slept in Kakuma. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1611/eng@2026-01-27 3

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27. The appellant went back to Pokoton to check on the girl and was then asked by one Rita to take the girl away. He took the girl to Kakuma on foot and booked a room within Kakuma Town where he left his gun to go and buy miraa. 28. He said that he did not go to sleep in the room the whole night and only came back in the morning and bought the girl some food. He then left to get a motorcycle to ferry her to Lokichoggio but was attacked by a man who ordered him to accompany him to the Police Station. While at the police station the story changed and he was being accused of having sex with a girl. The girl was then taken to hospital as the appellant remained in the cells. 29. Upon cross-examination, he said that he was never arrested but took himself to the Police Station. He added that he took the girl to the lodge before going to buy miraa and that he never reported the presence of the girl with the police because she did not belong to him. He reiterated that he left the girl in the lodge as he went to buy miraa where his gun was and that the girl was taken to hospital in Kakuma. 30. Having closed the defence case, the court retired to draft this judgment. When delivered on the 28/6/2024 the court convicted the accused for the offence of defilement as charged. After affording him the chance to mitigate, the accused was sentenced to serve a jail term of 15 years. 31. The appellant was aggrieved by the conviction and sentence and therefore initiated the instant appeal challenging the judgment on five grounds. The grounds of appeal read that; the prosecution did not prove its case beyond reasonable doubt, that important witness was never called to testify; that the conviction was based on bare circumstantial evidence which evidence was inconsistent and lastly, that the evidence on age assessment was not credible. 32. The court reminds itself that it takes a very strong case and a demonstration of error in the appreciation and application of the law to the facts pleaded for an appellate court to interfere with factual findings by the trier of facts. The court must be satisfied that the conclusion reached are not the consequence of the proper analysis of the facts as viewed against the law or that the findings are otherwise a pervasion of the law or the facts. 33. The evidence presented before the trial court, especially from PW1 cogently placed the appellant at the scene of the offence for several days and in a manner that to find that he was not the person who booked and used the lodge house for purposes of the unlawful sexual assault on the victim would be to pervert not only common sense but also the very foundation of judicial authority and existence. 34. The Appellants evidence in the defence that he booked the rom and left the girl there till morning was correctly dismissed by the trial court as incredible and not convincing but an afterthought. 35. The court’s analysis of the evidence at trial returns a verdict that the evidence led proved to the required standards beyond reasonable doubt the age of the victim, the fact of penetration and corrected the appellant to that act of penetration. 36. For that reason, the court finds the conviction to be safely founded upon cogent and direct evidence from which reason it invites no interference of appeal. The conviction is thus upheld. 37. On sentence, an appellate court must stand reminded that the duty of meting out sentence vests at the discretion of the court. An appellate court must remain hesitant against interfering with a sentence passed by the trial court at all. It will only interfere where there is demonstration that the sentence was illegal, that it failed to apply the principles applicable or that it is manifestly too excessive and or cruel. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1611/eng@2026-01-27 4

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38. Here the appellant was charged with defilement of a child aged 16 years. By clear dint of section 8(4) which prescribes a sentence of not less than 15 years. 39. In its discretion the trial court imposed a sentence of 15 years. That sentence was the least of the severest prescribed and the trial court cannot be faulted to imposing the least sentence prescribed. 40. It must be remembered that since Republic v Joshua Gichuki Muthegi Supreme Court Petition No E018 of 2023, the law is settled that the penalties given under the Sexual Offences Act are cast in stone and thus affords the trial courts, and every court below the Supreme Court, no discretion to mete out sentence lower than those prescribed. 41. The upshot is that the appeal is wholly bereft of merits and thus dismissed in its entirety. DATED, SIGNED AND DELIVERED THIS 27TH DAY OF JANUARY, 2026. PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1611/eng@2026-01-27 5

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