https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10145

Lotimuny v Republic (Criminal Appeal E018 of 2025) [2026] KEHC 10145 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10145 (KLR) Republic of Kenya In the High Court at Kabarnet Criminal Appeal E018 of 2025 TM Matheka, J July 10, 2026 Between Kakarial Lotimuny Appellant and Republic Respondent (Being an appeal on both conviction and sentence in Criminal case No. E004 of 2025 by Hon. P. Koskey at the Magistrate court at Kabarnet by a judgement delivered on the 1st October,2025) Judgment 1.The Appellant was charged with of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the 4th day of September,2025 at [Particulars Withheld], Paka Location in Tiaty Central Sub-county, within Baringo County, intentionally and unlawfully caused his penis to penetrate the vagina of CJL a child aged 6 years and 5months. 2.He was also charged in the alternative with committing an indecent Act with a child contrary to section 11 (1) of the Sexual offences Act no. 3 of 2006. The particulars were that on the 4th day of September,2025 at [Particulars Withheld], Paka Location in Tiaty Central Sub-county, within Baringo County, intentionally and unlawfully touched the vagina of CJL a child aged 6 years and 5 months. 3.He pleaded guilty to the charge and the facts . He was convicted on his own plea of guilty and sentenced to life imprisonment vide a ruling delivered on the 1st October,2025. 4.Aggrieved he filed this appeal on the following grounds of appeal:-i.That the Learned trial magistrate erred in both law and fact by convicting him yet it failed to consider the pre-existing grudge surrounding the allegation.ii.That the Learned trial magistrate erred both in law and fact by failing to appreciate that PW 1 was not a credible witness since she was coached to testify.iii.That the trial magistrate erred in both law and fact by failing to hold that investigations in the case was shoddy.iv.That the trial magistrate failed to take into consideration the defence evidence tendered.v.The Appellant urges this court to allow the Appeal, quash the conviction, set aside the sentence and he be set at liberty. 5.The Appeal was canvassed by way of written submissions. The Appellant submits that upon plea taking the trial court read the charges to the appellant who then pleaded guilty to the charge without the trial court taking into account that the offence was serious and that it could have warned the appellant of the outcome. 6.That the appellant is illiterate who is unable to speak or understand either of the national languages (English and Kiswahili) thus he deserved legal representation as provided under Article 50(2) (g) of the Constitution 2010. 7.The Appellant submits that the commission of the offence was on 4th day of September 2025 and the appellant was arraigned in the court of law on 17th day of September 2025, that this is negation of right to a fair trial under Article 49(f)(1)(ii) of the constitution which provides the accused to be taken to court within 24 hours. That failure of the trial court to note that the appellant overstayed in police custody shows that there was miscarriage of justice. That from the information in the charge sheet, the appellant was arrested on 5th September,2025 which contradicts the facts read to the appellant at plea taking when it was stated that he was arrested on 4th September 2025. 8.He submits that the facts adduced in the trial court was a more afterthought and a grudge driven and deserved an acquittal. That for conviction to stand in an offence of defilement there must be partial or full insertion of the male genitalia organ to the female genitalia organ. That in this case, the complainant was defiled until she went for a long call as shown in the picture vide 4(a)and 4(b) specimen 2. That this shows that there was full insertion and in his view, the complainant would have not moved from the alleged scene of crime considering the age of the appellant compared to that of the complainant. That the fact that the victim ran to her mother crying is a total lie and creates doubt, 9.The Appellant submits that the most important element of defilement is identification and in this case, the police recorded that the complainant reported to have been defiled by a person well known to her and during examination by the clinical officer (Fredrick Chebet) he stated that she was picked by unknown person and was threatened by the same unknown person. 10.He submits that the prosecution told the court that the appellant hit the complainant using machete on the head, undressed her, put her skirt on the waist and tore her pants and the doctors report on state of clothes shows that clothing were not torn. 11.He submits that the doctor described the physical appearance and behaviour of the complainant as well oriented, coherent, groomed and anxious meaning she was in her normal condition. 12.The Appellant contends that the information in the charge sheet is that the victim is 6 years and 5 months which was the report to the police. That during plea taking the prosecution informed the court that the victim was 6 years contradicting the evidence of the doctor and that of the forged birth certificate which concludes that the complainant was not truthful and her coached evidence was unreliable. 13.That during sentencing, the appellant was given a chance to mitigate and he confidently told the court that he was not in his right sense and further told the court that he was bewitched. He wondered what made the trial court to arrive at sentencing the appellant for life imprisonment and yet the appellant ought to have been taken for mental assessment to ascertain the issues he had raised . 14.That in its ruling, the court quoted the Supreme Court decision of Republic vs Julius Kitsao Manyeso and later said she will sentence the appellant under section 8(3) of the S.O.A. The appellant argues that the trial Magistrate failed to note that the above section awards a sentence of not less than 20 years and in other words, when the accused pleads guilty in any offence he/she has to benefit from the fruits meaning lesser term. 15.That the life sentence imposed is manifestly excessive, harsh and unjust considering that the appellant is a first offender and ignorant of laws. 16.The Appellant contends that the information in the charge sheet is different from the evidence in the proceedings i.e., the P3 form. 17.That under Article 50(2) (I) it provides that every accused person has a right to a fair trial which includes: to be informed in advance of the evidence the prosecution intends to rely upon and prepare for his defence. That in the instant case, the appellant was not given any information of the charges and its consequences instead the police officers intimidated the appellant forcing him to plead guilty to the charge telling him he would be sentenced to probation. 18.He submits that he harassed, tortured and was promised to be punished if he would attempt to deny the charges. 19.The appellant urged the court to scrutinize the proceeding and find that the appellant was not accorded a fair trial under Articles 49 & 50 of the Constitution and come out with own conclusion. 20.The Respondent on their part submitted the following issues present determination :1.Whether the plea of guilt by the appellant was unequivocal.2.Whether the sentence was wrong in principle. 21.On whether the plea of quilt was unequivocal, it is submitted that section 348 of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya is explicit that:“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 extentand legality of the sentence." 22.It is their submission that the plea of guilty entered against the appellant was unequivocal. That Charges were read over to the appellant in the language he understood which was Pokot same was interpreted in Kiswahili to the court which he stated; it's true (pg. 5 line 19). That the facts were presented and the same were again interpreted in Pokot and the appellant pleaded to them and confirmed that facts were true. 23.It is submitted that there was no language barrier, and the appellant well understood the charges he faced. They place reliance on P. Foster (Halle Vie) vs Roberts (1978) 2 All ER 751 where it was held that; a court cannot accept an equivocal plea of guilty: It... must either obtain an unequivocal plea or enter a plea of not guilty. For a plea to be equivocal the defendant must add to the plea of guilty qualification which, if true, show that he is not gird), of the offence charged." 24.They submit that at the trial, the appellant did not qualify his plea, an indication that he well understood the proceedings and the import of his plea. They place reliance on the decision of the Court of Appeal in Musa Shahan Kabughu v Republic [2020] KECA 508 (KLR), where it was held that after the charges were read over to him, the appellant was at liberty to plead 'guilty' or not guilty' whereby he chose to plead guilty and this ground should then fail. It is submitted that this ground of appeal is unmerited and should fail. 25.On whether the sentence was wrong in principle, it is submitted that Section 8(2) of the Sexual Offences Act provides as follows:“A person who commits an offence of defilement with a child below 11 years is liable upon conviction to life imprisonment." 26.That the Supreme Court in Republic v Manyeso (Petition E013 42024) [2025/ KESC 16 (KLR) stated as follows:“Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case (did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution." 27.That it is settled law that sentencing is a matter that rests in the discretion of the trial court; that the Complainant was 6 years 5 months old at the time of the commission of the offence hence the offence that the Appellant was charged with carries a sentence of life imprisonment. That the import of the Supreme Court decision in Republic v Manyeso (supra) is that Court cannot substitute mandatory or minimum sentences with alternative sentences; that the sentence was lawful and was in accordance with Section 8(2) of the Sexual Offences Act. 28.It is their submission that Appellant's appeal is unmerited and that the conviction and sentence be upheld. Analysis and Determination 29.I have considered the petition of appeal, the record of appeal and the submissions made by both parties. The issues for determination are as follows:-a.Whether the plea was unequivocal.b.Whether the Appellant’s constitutional rights to fair trial were breached.c.whether the sentence imposed on the Appellant was harsh and excessive. 30.This is a first appeal. The court’s duty was set out in Okeno vs. Republic [1972] EA 32 where the Court of Appeal stated:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.” 31.Similarly, the duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows:-“... When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.” 32.It was therefore appreciated by the Court of Appeal in Kiilu & Another vs. Republic [2005]1 KLR 174, that:1.An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.2.It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses. 33.The elements constituting the offence of defilement are proof of penetration, the age of the minor and the identity of the assailant (See C.W.K v Republic [2015] eKLR). 34.Section 8(1) of the Sexual Offences Act provides as follows:“ 8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(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.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 35.The Appellant contends that he did not understand the consequences of pleading guilty to the charge and that the magistrate ought to have warned him. 36.The Appellant pleaded guilty to the charge of defilement and he was convicted on his own plea of guilty. There is ordinarily no appeal against conviction resulting from a plea of guilty – See Section 348 of the Criminal Procedure Code which only permits an appeal regarding legality of sentence. 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. 37.I have perused the proceedings of the trial court and the process that was employed by the trial magistrate who was so keen to make sure that the appellant could understand the charge he was facing; the record then shows that the charge was read out in the English language and translated to Pokot language and the appellant admitted the charge and the facts which were read out in some detail by the court prosecutor. 38.The appellant raised issue that he did not understand the charge because it was not read to him in his language he understood. The record shows that the court established that the language that the appellant understood was the Pokot language. Both the charge and the facts were read and explained in the Pokot language , The appellant understood the same. he understood the gravity of what he had done and told the court that he was not in his right senses, that he was bewitched. he argues that his mitigation ought to have triggered a menta assessment before he was sentenced and it raised the issue of his mental health status at the time of commission of the offence , 39.My reading of the court record reveals that the appellant pleaded to the , the facts and the charge. I don’t read the record to say that he was saying he had a mental illness. he was explaining why he did the deed. 40.He however raises two serious issues which determine whether the trial was fair whether his right to a fair trial was violated: whether he was supplied with the evidence the prosecution was going to rely upon in the case against him; whether he was entitled to counsel, 41.It is necessary to address the issue of the period the appellant say he was held in custody before being presented to court. It was the duty of both the court and the ODPP to take this into account for the record for the purposes of holding the police officers involved accountable for their failure to abide by the Constitution. 42.Article 49 of the Constitution states as follows;An arrested person has the right:-(f)to be brought before a court as soon as reasonably possible, but not later than—(i)twenty-four hours after being arrested; or(ii)if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day; 43.. The consequence of such violation have been pronounced in various cases for instance; In Julius Kamau Mbugua vs Republic [2010] eKLR, thus;“In our view, it is not the duty of a trial court or an appellate court dealing with an appeal from a trial court to go beyond the scope of the criminal trial and adjudicate on the violations of the right to personal liberty which happened before the criminal court assumed jurisdiction over the accused. However, the trial court can take cognizance of such pre-charge violation of person liberty, if the violation is linked, to or affects the criminal process. As an illustration, where the prolonged detention of a suspect in police custody before being charged affects the fairness of the ensuing trial e.g., where an accused has suffered trial related prejudice as a result of death of an important defence witness in the meantime, or the witness has lost memory, in such cases, the trial court could give the appropriate protection like an acquittal. Otherwise, the breach of a right to personal liberty of a suspect by police per se is merely a breach of a civil right, though constitutional in nature, which is beyond the statutory duty of a criminal court and which is by Section 72 (6) expressly compensate able by damages.” 44.In Musa Shaban Kabughu v Republic [2020] eKLR the court had this to say;“In other words, the violation of the appellant’s right to be produced in court within 24 hours did not automatically result in a right to an acquittal from the offence he faced. Instead, it would give rise to a claim for damages, and the appellant was at liberty to claim for the violation of his Constitutional rights. On this basis, we do not consider the delay in his arraignment in court to have been unreasonable or fatal to the prosecution’s case. This ground is dismissed” 45.From the above the available for the accused to channel his grievances to the constitutional court for legal remedies for violation of his rights and for that reason. 46.On whether the sentence meted on him was harsh and excessive., the offence the Appellant was convicted of is the offence of defilement contrary to section 8(1) as read with Section 8(2) of the Sexual offences Act No. 3 of 2006. Section 8(2) of the Sexual offences Act provides that,‘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. 47.In this case, the complainant was of the age of 6 years and 5 months at the time of the offence. Thus, the appropriate penalty clause is Section 8(2) of the Act which prescribes the mandatory minimum sentence of life imprisonment. 48.On the issue of legal counsel, the Constitution at Article 50 (2) provides inter alia for the right to fair trial to include: the right(g)to choose, and be represented by, an advocate, and to be informed of this right promptly;(h)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; 49.The Legal Aid Act , 2016 at in breathing life to the above provision provides at s. 43 for the Duties of the court thus;(1)A court before which an unrepresented accused person is presented shall—(a)promptly inform the accused of his or her right to legal representation;(b)if substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her; and(c)inform the Service to provide legal aid to the accused person.(1A)In determining whether substantial injustice referred to in paragraph (1) (b) likely to occur, the court shall take into consideration—(a)the severity of the charge and sentence;(b)the complexity of the case; and(c)the capacity of the accused to defend themselves.(2)The Service shall provide legal aid to the accused person in accordance with this Act. 50.This law speaks for itself. A trial court taking plea must not only follow Adan V R [1973]EA 445 on plea taking but is now required by the Constitution to inform the accused of his right to an advocate. The court must conduct an inquiry as to whether substantial injustice ill result upon the accused if he has no representation, and make a finding, It is this finding that will trigger , where required representation by state counsel or counsel at state expense. 51.The appellant submits that the court ought to have warned him of the consequences of a plea of guilt, 52.in this case, the charge was serious carrying a mandatory life imprisonment sentence. However heinous the offence , the accused person was entitling to fair trial which included the prompt information that he was entitled to lawyer and the warning of the consequences of pleading guilty to such a charge. 53.S. 348 of the CPC must be read together with the provisions of Article 50 of the Constitution, and it cannot override the requirements 54.In Wandete David Munyoki v Republic [2015] KECA 421 (KLR)The CoA addressed the question of s. 348 of the CPC , the need to caution an accused person facing a serious charge , and when to order for a retrial 55.On s. 348 the court saidIt has long been settled that Section 348 of the Criminal Procedure Code which provides that no appeal is allowed in a conviction arising from a plea of guilty, except to the extent and legality of the sentence, is not an absolute bar to challenging such a conviction on any other ground. Indeed, in Ndede v R [1991] KLR 567, this Court held that the court is not bound to accept the accused person’s admission of the truth of the charge and conviction as there may be an unusual circumstance such as injury to the accused person or the accused person may be confused or there have been inordinate delay in bringing him to court from the date of arrest. The list of circumstances and examples that may lead the first appellate court to consider the appeal on merit even when the conviction was on the accused person’s own plea of guilty, are not closed. 56.There are exceptions to S. 348. In this case the appellant did not speak the language of the court, He says he is illiterate. In addition, he was of the view that he was bewitched hence his actions. 57.The court addedThe second principle we must remind ourselves of in addition to the procedure laid down in Adan v R [1973] EA 445, is that before basing a conviction on a plea of guilty in a capital offence the trial court must warn the accused person of the consequences of entering such a plea. See Boit v R [2002] 1KLR 815. 58.A charge under s. 8(1) as read with s. 8(2) of the Sexual offences Act faces a mandatory term of life imprisonment . It is my considered view that there is not much difference between this and a capital offence and the appellant ought to have been cautioned about the consequences of pleading guilty to this charge. 59.I dare add to the Adan v R principle the requirement that the applicant ought to have been informed of his right to counsel. The law makes it mandatory. 60.The CoA had this to say about retrialThe consideration before an order for retrial can be made was explained by the Court of Appeal for Eastern Africa as follows in Fatehali Manji v R (1966) EA 343 :-“In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered when the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and circumstances and an order for a retrial should only be made where the interest of justice require it.” 61.I am persuaded that the appeal has merit to the extent that the appellant was not informed of his right to counsel and was not cautioned about the consequence of pleading guilty to the charge. t 62.However, the record does indicate that the prosecution had the evidence to prosecute. 63.In the circumstances, the conviction is quashed, the sentence set aside and the matter remitted to the magistrate’s court for trial. 64.The appellant be presented before the head of station within 7 days hereof for directions on the hearing and determination of the matter. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KABARNET HIGH COURT THIS 10TH JULY 2026MUMBUA T MATHEKAJUDGEIn the Presence of:-CA MomanyiAppellant present virtuallyMr. Koech for state