Ltimasin Leghalaile v Republic

B. Evidence at Trial 4. PW1 I.L testified that she was a resident of [Particulars withheld] and was not sure of her age. She recalled that on 13.03.2025, she was in the field herding animals near Soitnajuu Hills, when the accused, who was a person well known to her, came and started to make unwarranted advances on her by touching her, and asking for sex, but she resisted and asked him to leave her alone. The appellant then forcefully fell her down, removed his penis from his Kikoi and proceeded to insert his penis inside her vagina. Despite her protest and screams, he refused to let go until he was done. After this unwarranted ordeal, she ran home and reported the incident to her mother (PW2) and she was taken to the police station and to the hospital to get assistance. 5. PW2 ML, confirmed that PW1 was her 2nd last born child and that on the material day had gone to take relief food from the DC’s office at Merille. While there she was informed by her other children of the incident that had occurred and rushed back home, where PW1 narrated to her what had transpired, as captured in her evidence. They reported the incident to the police and the minor was later taken to hospital for treatment. Under cross examination, she confirmed that her daughter was sure of the person, who had raped her and had subsequently left the cows in the field and rushed home to report the said incident. 6. PW3 LL, confirmed that PW1 was his 2nd last born daughter and he was also away from home herding his cows, when he received information concerning the incident that had occurred, He rushed home and upon inquiring from PW1, on who had sexually assaulted her, she confirmed that it was the accused person, who had done so. He emphasized that the appellant was a person well known to them, did not stay far away from their home and would even drink cow milk at his house, thus was not a stranger to his family. 7. He called the village elders and on the same night and went to where the appellant was herding goats and proceeded to arrest him and took him to the police station. Under cross examination, he admitted that he did not witness the crime, but when arrested by the elders, the appellant had confessed and owned up to committing the said crime without being coerced to do so. 8. PW4 TLK, described himself as a local elder within the village where the incident occurred. Upon receiving the said news, he had accompanied the child’s parents to the police station and later joined the elders in searching for the appellant, whom they arrested and handed him over to the police. 9. PW5 Hanam Oduor Ndeba, a clinical officer based at Laisamis sub county referral hospital, examined PW1 and confirmed that the labia minora, majora and clitoris were intact. The hymen was broken but not freshly and, on vaginal examination, he had established that there was a small cut at the lower opening part. He concluded that PW1 was defiled and produced the P3 form and PRC form as Exhibits before the court. Later in May 2025, he also undertook age assessment examination for the minor herein and established that she was about 14 years old. He also produced the said age assessment report into evidence. 10. PW6 PC Leonard Cheruyiot, attached to laisamais police station, testified that he was assigned to investigate this case and took all relevant witness statements. PW1 in particular had narrated how the appellant had forcefully defiled her and this was confirmed by the medical report produced before court. The appellant was arrested on the following morning by members of the public and was brought to the police station and upon completing his investigation, he had preferred the charges before court against the said appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11282/eng@2026-07-23 2

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11. The appellant was placed on his defence, and opted to give sworn evidence. He stated that at the time of the incident, he was away from Particulars withheld and had gone to Serolipi in Samburu to attend a wedding ceremony. From the said wedding ceremony he had gone to Nkiposorogi, at fora, where he met the elders and was informed that he was wanted at the police station, in connection to the said incident. He reiterated that he was innocent and urged the court to acquit him of the charge faced. 12. The learned trial magistrate considered all the evidence adduced and found the Appellant guilty of the offence of defilement and after considering his mitigation proceeded to sentence him to serve a term of ten (10) years in prison. C. The Appeal 13. 14. Dissatisfied by the conviction and sentence passed, the Appellant filed the following amended grounds of appeal that; a. That the learned trial magistrate erred in matters of law and fact by failing to note that the prosecution failed to prove the trial case beyond reasonable doubt. b. That the learned trial Magistrate erred in matters law and fact by not considering an alibi defense, which had cast doubt against the prosecution’s case. c. That the learned trial magistrate erred in the matter of law and fact by not considering the final remarks from the doctor, did not corroborate with the narration of testimonies of the key witnesses. d. That the sentence meted upon the appellant was harsh compared to the circumstances of the prosecution case. e. That the constitution failed to protect the appellant as the trial court failed to inform him on his right to choose to be represented by a state advocate. The Appellant prayed that his conviction and sentence be quashed and he be set free. D. Analysis & Detrmination 15. The being the first appeal, this court is as a matter of law enjoined to analyze and re-evaluate a fresh all the evidence adduced before the lower court and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses. See Okeno versus Republic (1072) EA 32, Pandya versus Republic (1957) EA 336) & Shantital M Ruwala versus Republic (1957) EA 570, where the court of appeal set out the duties of the first appellant court. 16. This court has examined the Record of Appeal, the grounds of appeal and given due consideration to the submissions filed by the Appellant and the respondent Counsel and find that the following issues arise for determination; a. Whether the ingredients of the offence of defilement were sufficiently proved by the prosecution witnesses. b. Whether the trial court failed to consider the alibi defence put forth by the appellant during trial. c. Whether the appellant right to fair trial was infringed, since he did not het a state appointed advocate to defend him during trial. d. Whether the sentence passed should be interfered with. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11282/eng@2026-07-23 3

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17. In criminal cases, the burden of proof lies with the prosecution and they have to persuade the court either by preponderance of evidence or beyond reasonable doubt, that the material facts that constitute their whole case are true, thus consequently have established their case and deserve to have judgment given in their favour. See Miller vs. Ministry of Pensions (1947) 2 All ER, 372 , Republic Vs Edward Kirui (2014) eKLR, and Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 (A) Whether the offence of defilement was proven. 18. 19. The Appellant was found guilty of defilement in contrast to section 8 (1) as read together with section 8 (3) of the Sexual Offences Act, No 3 of 2006. The said sections provide that; 8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 8(3) “A person who commits an offence of defilement with a child aged between the age of twelve years and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years” Three elements to be proven in such a case are; a. Age of the complainant; b. Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and c. Positive identification of the assailant i. Age 20. On this question of age, I rely on the case of Fappyton Mutuku Ngui vs. Republic [2012] eKLR where it was held that: “ conclusive” proof of age in cases under the Sexual Offences Act does not necessarily mean a certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases” 21. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR also stated as follows in respect of proving the age of a victim in cases of defilement: “ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” (emphasis added) 22. The victim underwent a age assessment examination and it was established that she was a minor aged about 14 years old. Age was therefore sufficiently proved beyond reasonable doubt. ii. Identification 23. On identification, PW1 knew the appellant well as a person residing within their village, and PW3 described him as a young person, who was welcomed at his home and would drink milk from his https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11282/eng@2026-07-23 4

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house. The incident occurred at about 12 noon, in broad daylight, and immediately thereafter PW1 rushed home to report what had transpired and specifically mentioned the appellant as the culprit. This therefore was a case of recognition as the victim knew the appellant by name and the incidence of was confirmed to have occurred in broad day light at about mid-day. ii. Penetration 24. PW1, vividly described how the appellant approached her while she was herding their cows, and started to indecently touch her while demanding for sex. She rebuffed his unwarranted approach, but he persisted and forcefully fell her down and proceeded to defile her, by insert his penis inside her vagina. She screamed for help but nobody came to rescue her since they were alone in the grazing field. 25. PW5 examined PW1 and confirmed that she had a small cut on the lower part of her vigina, which confirmed that she had been defiled. This evidence corroborated that of the minor and sufficiently proved penetration. ii. Alibi Defence and Fair hearing/Right to counsel. 26. In defence the appellant alleged that he was away in Serolipi, but that defence is untenable since he was positively identified by PW1 and was arrested by the village elders on the material night, where he was herding his goats. His alibi defence therefore cannot hold and in any event was raised too late in day, during defence hearing. 27. As to whether the appellant right to fair trial was infringed by the trial court failing to inform him of his right to choose to be represented by a state appointed counsel, In Republic v Karisa Chengo & 2 others [2017] eKLR, the Supreme Court (Maraga, Mwilu, Ibrahim, Ojwang, Wanjala, Njoki; and Lenaola- Justice of the Supreme Court) had this to say on the matter; “ In the above context, it is obvious to us that in criminal proceedings legal representation is important. However, a distinction must always be drawn between the right to representation per se and the right to representation at State expense specifically. Inevitably, there will be instances in which legal representation at the expense of the State will not be accorded in criminal proceedings. Consequently, in view of the principles already expounded above, it is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a Court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include: The seriousness of the offence; The severity of the sentence; The ability of the accused person to pay for his own legal representation; Whether the accused is a minor; The literacy of the accused; The complexity of the charge against the accused;” 28. In Owidi v Republic (Criminal Appeal E054 of 2022) [2023] KEHC 21977 (KLR) (23) (Judgment) Wendoh J. persuasively stated as follows; ‘Article 50 (2) (h) requires that an accused be informed of the right to be assigned counsel at the State expense if substantial injustice would otherwise result. He is also supposed to be informed of this right promptly. From the record, the appellant was not informed of the said right. However, the said right is not absolute. One has to demonstrate that substantial injustice would result to him if the right is not complied with”. 29. Going by the above pronouncements, it can be safely concluded that right to get legal representation at state expense is not automatic. It is one that will be achieved progressively within the available means and adequate numbers of legal counsel. In Kenya today only persons charged with murder or children https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11282/eng@2026-07-23 5

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in conflict with the law are entitled to automatic legal representative at State expense. Other people have to prove that they will suffer substantial injustice. 30. The Appellant fully understood and appreciated the trial court proceedings. At no time during the said proceedings did he ask to be assisted with a counsel and was able to cross examine all witnesses and put forth his defence. He cannot be heard late in the day to allege to have been prejudiced, when he did not raise this issue during trial. This ground of appeal thus fails. 31. After considering the totality of the evidence adduced by both the prosecution and the Appellant, I do find that his conviction was safe and thus his appeal against conviction fails. (B) Sentencing 32. The principles guiding interference with sentencing by the appellate court were properly set out in S Vrs Malgas (1) SACR 469(SCA) at para 12, where it was held that; “ A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would usurp the sentencing discretion of the trial court………however, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”. 33. Similarly, in Mokela Vs The State (135/11)(2011) ZASCA 166, the Supreme Court of South Africa held that; “ it is well established that sentencing remains pre-eminently within the discretion of the sentencing court. The salutary principle is that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by the sentencing court. In my view, this includes the terms and conditions imposed by the sentencing court on how or when the sentence is to be served.” 34. The Appellant was charged with the offence of defilement defilement contrary to sections 8(1) and 8(3) of the sexual offences Act No. 3 of 2006 which expressly provides that a person found guilty of the offence of attempted defilement is liable to be sentence to a minimum sentence of twenty (20) years. 35. The Appellant was sentence to serve a period of ten (10) years, which is less than what is statutorily provided for and is lucky that no cross appeal was filed by the state to enhance the said sentence. There is therefore no material misdirection, which can justify in interfering with the said sentence. Disposition 36. The upshot, having considered the evidence adduced at trial and submissions made, I do find that the Appeal against conviction and sentence fails and the same is dismissed. 37. It is so ordered JUDGMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MARSABIT THIS 23RD DAY OF JULY 2026. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11282/eng@2026-07-23 6

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FRANCIS RAYOLA OLEL JUDGE Delivered on the virtual platform, Teams this 23rd Day of JULY, 2026. In the presence of:………………………………………..Appellant ………………………………….For O.D.P.P ………………………………….Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11282/eng@2026-07-23 7

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