Nicholas Ochieng v Republic

sentences were ordered to run concurrently and to take into account the time the Appellant spent in custody. 5. Aggrieved by the said conviction and sentence, the Appellant lodged a petition of appeal wherein he raised 24 grounds of appeal which have been summarized as follows: i. That the trial magistrate erred in law and in fact by relying on inconsistent, contradictory and uncorroborated evidence adduced by the prosecution thus arriving at a wrong decision. ii. That the trial magistrate erred in law and in fact by relying on a forged birth certificate as admitted by FO (PW2) thus arriving at a wrong decision. iii. That the learned trial magistrate erred in fact and law in convicting the Appellant for an offence allegedly committed in January 2023 when the Appellant took over as headteacher in March 2023 thus arriving at a wrong decision. iv. That the trial magistrate erred in fact and law in convicting the Appellant based on a defective charge sheet thus arriving at a wrong decision. v. The trial magistrate erred in fact and law in failing to appreciate that the allegation against the Appellant was farfetched in that the alleged offence was committed when the complainant was a student but that the complaint was registered more than 10 months after she left the school thus arriving at a wrong decision. vi. The trial magistrate erred in fact and law when she did not hear the evidence of the minors namely Jane, Sonia and Jackeline (classmates) whom the complainant claimed that they were with her when she was called by the Appellant thus arriving at a wrong decision. vii. The trial magistrate erred in fact and law when she did not hear the evidence of the OCS Bondo Police Station who came up with the allegation of defilement of the minor. viii. The trial magistrate erred in fact and law when she did not hear the evidence of AAO who reported the offence at Madiany Police Station vide OB No. 09/21/11/24 thus arriving at a wrong decision. ix. That the sentences were manifestly harsh in the circumstances. The Appellant therefore prayed that the conviction be quashed and the sentence be set aside and that he be set free. 6. This being a first appeal, this Court must reconsider and re-evaluate the evidence adduced before the trial Court to arrive at its independent findings and conclusion. (See Okeno vs. Republic [1972] EA 32). In doing so, this court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified before the trial court and, therefore, it ought to make due allowance in that respect as was held in Ajode v. Republic [2004] KLR 81. 7. In determining this appeal, I have to bear in mind that under Section 107 of the Evidence Act (Cap 80), the burden is always on the prosecution to prove the allegations levelled against the Appellant. This being a criminal case, the standard of proof is beyond any reasonable doubt as held in Woolmington Vs Dpp [1935] AC 462 and Sawe versus Republic [2003] Eklr. 8. The prosecution called a total of four witnesses in support of its case. 9. S.A.O (PW1) was the complainant. She testified that she knew the Appellant as he was her head teacher at [Particulars Withheld] where she was a pupil. She stated that the Appellant had defiled her twice, in https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12597/eng@2025-09-16 2

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the year 2023 when she was in grade 8, in the first term and that the Appellant defiled her in a grade two classroom. 10. The complainant went further to state that in the second term, the Appellant had sex with her in his office after he asked her to remain behind after school hours and after everyone had left. That he asked her to spread a mat on the floor and remove her clothes. That the Appellant also removed his white shirt and black trouser. That he then removed his blue underwear. She went ahead to state that the Appellant was circumcised. That he laid on her and inserted his penis inside her vagina. That he went for two rounds and then released her to go. That she did not tell anyone when she arrived home as the Appellant had warned her not to. That sometime later after she had completed her KCPE examinations, she left her uncle’s house where she had been staying and planned to go to Nairobi where her mother was. She however was stranded as her mother’s phone was not going through. That a stranger found her and took her to Bondo Police Station. At the station she spent the night and that the following day she realized that her Aunt A whom she stayed with had made a report of the alleged defilement. She was then taken to Madiany Sub County Hospital where she was examined. The hospital documents were marked as follows: P3 form (PMFI- 2), treatment notes (PMFI- 3), laboratory request form (PMFI-4), and PRC form as PMFI- 5. She reiterated that it was the Appellant who committed the atrocities on her. On cross examination, she explained how the incidents of defilement occurred, still implicating the Appellant as the perpetrator. On re-examination, she explained that the mat they used in the Appellant’s office belonged to one Madam Elizabeth who had a small child who used to sleep on that mat. 11. FO (PW2) testified that he knows the complainant as the daughter to his sister in-law. That he was married to two wives and that the first wife AAO was a sister to the mother of the complainant. That he was currently staying with his seven children plus the complainant and his second wife JAO. That the first wife had gone to Nairobi owing to their marital differences. That he knew the Appellant as a head teacher of [Particulars Withheld], where the complainant studied. It was his testimony that one day his first wife, A called him, complaining that the head teacher had called her to inform her that he had been defiling the minor. That he denied the allegations and informed his said wife to enquire from the complainant. That upon his wife inquiring from the complainant, the complainant informed her that it was the head teacher who had been defiling her. That he was advised to stay calm until the complainant was through with her KCPE exams. That it was after the said exams that one evening he returned from the farm and was informed that the complainant had left with her bag. That he was later that evening called to go to Bondo Police Station where he found the minor. That the following day, he was was advised to report the case to Aram police station and that he then escorted the minor to Madiany hospital for examinations. On cross-examination, he stated inter alia; that he knew the Appellant as he had visited his house one time at night trying to sneak into his compound in pursuit of the complainant who was then sleeping with his female children; that he has never defiled children as that is abomination; that the complainant was reluctant to pursue the case; that he sent the complainant to go to her grandmother’s home after the incident. 12. Ivy Achieng (PW3), a clinician from Madiany sub county hospital examined the complainant and found that the minor was in a fair general condition. On examination of the genitalia, the hymen was broken but not freshly broken. A HVS showed that epithelial cells were present which meant that she had a UTI infection. She concluded that the complainant had indeed been defiled by a person well known to her being the head teacher of her school, based on the history the complainant had given, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12597/eng@2025-09-16 3

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plus the examination. She produced the P3 form as exhibit 2, treatment notes as exhibit 3, Lab request form as exhibit 4 and PRC form as exhibit 5. 13. The last prosecution witness was No. 118088 Pc Francisca Gitau (PW4) attached to Aram police station. She was the investigating officer in the matter. She testified that on 22/11/2023, while at the station, the OCS instructed her to record the Complainant’s statement in the presence of the children’s officer. She stated that the minor informed her that she had been having sex with the Appellant who was her head teacher at [Particulars Withheld]. That they had been doing so in his office and in classrooms when everyone else had left. She recorded the statement of the guardian (PW2). She stated further that she got a copy of the minor’s birth certificate which she had certified as true copy of the original at the registry of births and deaths. That she was not able to procure the original as it was with the mother of the minor who could not be reached on phone. That the birth certificate indicated that the minor was born on 26/12/2007 placing her at 16 years at the time of the alleged defilement. That she produced a copy of the birth certificate as exhibit 7. She visited the home where the minor stayed and the school as well. That the head teacher then went missing for over seven months and that upon his arrest he was charged with the offences before the court. On cross- examination, she stated that AO could not testify because she was far in Kiambu County. That the complainant did not state the specific dates when the incidences took place. 14. The trial court thereafter ruled that a prima facie case had been established by the Respondent and thus placed the Appellant on his defense. He tendered a sworn testimony and called two witnesses. 15. Nicholas Ochieng (DW1) stated that in the year 2023 he was the head teacher at [Particulars Withheld]. He stated that he did not teach class eight. That the teacher in charge of tuition was Mr. Zakayo Onom who would conduct tuition even on Saturdays. That he did not go to school on Saturdays. He testified that he knew FO as uncle to the complainant and AO as his wife. That he knew the biological mother to the complainant as MA and that he heard that the biological father was called DO but that the birth certificate of the minor however showed the father as FO and the mother as A Akoth. That he had never talked to the minor’s biological mother when the guardian defaulted in fee payment. He testified that the Complainant could report to him that her uncle could touch her on her private parts while at home and that he promised to inform her mother. He stated further that he did not see the investigating officer and that when he was arrested he did not record his statement. He also added that he was always at home on Saturdays. He denied having seduced the minor. On cross examination, he stated that he had talked to the mother but did not physically know the Complainants parents. That the complainant reported to him as the head teacher that she was being molested at home. That he did not report the said complaints to the police. He stated that he was more close to the complainant as the head teacher. He stated that he did not intend to call Mr. Zakayo Onam as his witness but instead he intended to call Joseph Amola Odira and Nancy Opondo both of whom were not teachers at Manera during the incident. 16. Joseph Amola Odira (DW2) testified that he was the current head teacher at Manera Primary having reported on 08/01/2024 and that the Appellant was his predecessor. That duty of the head teacher is to teach and his responsibilities is to take care of the institution and to make sure that the school was safe and to be accountable for everything. That the accountable documents include the logbook and code of regulations. That the logbook showed that the Appellant reported on 26/01/2023 and did handing over on 07/03/2023. That he reported to the school on 08/01/2024 and that the Appellant handed over to him on 01/02/2024. That the instruments handed over to him were the logbook of the school, rubber stamp files, assets and liabilities. That any significant event in the school is captured on the logbook, indicated as an OB. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12597/eng@2025-09-16 4

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That he joined the school after Appellant had left. That they were not close and did not know him well. That a report by a pupil on an alleged defilement ought to be recorded in the logbook and then the head teacher makes a report with the police and investigations to start. He however testified that there was no such incident captured in the logbook of the school. The logbook was produced as D exhibit 1. 17. Lucy Atieno Alero (DW3) testified that she is a teacher by profession and that she is a wife to the Appellant having married in September 1997. She testified that the Appellant reported to [Particulars Withheld] on 26/01/2023 and that he took over the school on 07/03/2023. That from 26/01/2023 to 07/03/2023, he was at home. That he would leave in the morning and return in the evening and so she assumed he was going to work. That ordinarily, he was at home on Saturdays and Sundays. That he was at home mostly on Saturdays. On cross -examination, she stated that every day from January 2023 he would leave home while saying that he was going to school. That she teaches at Kibuye Primary School and so she would not know what goes on at Manera Primary where the Appellant was. That she was also not home all Saturdays and so she could not attest that he was at home every Saturday. On re-examination, she stated that the Appellant never informed her that he was going to school on Saturday. 18. That marked the close of the defense case. 19. The appeal was canvassed by way of written submissions. However, it is only the Appellant who complied. 20. The Appellant submitted that there were contradictions in terms of the age of the complainant. It was submitted that the charge sheet was altered and not counter signed. Further, that the age of the complainant is indicated as 17 years which was confirmed by the complainant as per page 6 line 21 of the record of appeal yet the trial magistrate however indicated that the minor was aged 15 years 8 months. It was further submitted that the inconsistencies were also in the number of times the complainant is said to have been defiled yet she testified to have had sexual intercourse with the Appellant twice. That PW2 claimed that the Appellant has been having sexual intercourse with the minor every Saturday and Sunday, while the investigation officer stated that the minor informed her that the Appellant had defiled her three times. 21. The Appellant further submits that the birth certificate is a forgery. He submits that the minor indicated that her biological father is Dismus Otieno and her biological mother MA. However, the birth certificate bears the name of FO as the father and AAO as the mother. That the trial court noted the same at page 4 line 18, 19, 22 and 23 of the judgment. That the trial court noted that the certificate was obtained 13 years after the birth of the minor, having been obtained in 2020 while the minor was born on 26/12/2007. He submits further that PW4 confirmed the said forgery on page 16 line 18 to 20 of the proceedings. 22. The appellant submits that the offence was committed while the minor was a student but was reported 10 months later after she had left school. Further, that key witnesses who were the complainant’s friends were not called. That the OCS Bondo Police Station was not called as a witness too. That the reportee AAO was not called thus the complaint was not established. 23. It is likewise the submission of the Appellant that owing to the allegations that the Appellant was HIV positive, the clinician ought to have tested both the Appellant and the complainant to ascertain whether the minor had been infected with the same. Further, the minor was infected with UTI which https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12597/eng@2025-09-16 5

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would have necessitated a test on the infection done on the Appellant to ascertain whether he was the source of the infection. This, the Appellant submits was not done. 24. In a nutshell, the Appellant submits that there were poor investigations on the part of the investigating officer and the clinician that created many gaps and doubts which should go in favor of the Appellant. In the circumstances, it was urged that the appeal be allowed. 25. Having considered the trial court proceedings plus the submissions on appeal, I find the issue for determination is whether the Respondent proved the charges against the Appellant beyond reasonable doubt. 26. It is noted that the Appellant faced two main charges under section 8 and 24 of the Sexual Offences Act No. 3 of 2006. The relevant ones are 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. (4) A person who commits an offence of defilement with a child between the ages of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 24(4)-Any person who being the head teacher, teacher or employee in a primary or secondary school or special institution of learning whether formal or informal, takes advantage of his or her official position and induces or seduces a pupil or student to have sexual intercourse with him or her commits any other offence under this Act, such sexual intercourse not amounting to the offence of rape or defilement, shall be guilty of an offence of abuse of position of authority and shall be liable upon conviction to imprisonment to a term of not less than ten years. 27. The burden of proof lies on the prosecution and that it never shifts to the Appellant herein. Under Section 107 of the Evidence Act (Cap 80), the burden of proof is on the prosecution to prove the allegations levelled against the Appellant. This being a criminal case, the standard of proof is beyond any reasonable doubt. The prosecution must prove its case against an accused person beyond a reasonable doubt, and if there is a doubt then it must be resolved in favor of the accused. This was the holding by the House of Lords in the leading Judgment in that area in the case of Woolmington v Director of Public Prosecutions [1935] AC 462 where the Court held that the burden of proof in criminal cases is always on the prosecution to prove the defendant’s guilt beyond a reasonable doubt. That position and the holding in Woolmington (supra) have been accepted and applied by our Courts for many years. For instance, in the case of Moses Nato Raphael v Republic [2015] eKLR, the Court of Appeal referred to the speech by their Lordships in the said case and stated: “ The principle of law to the effect that the burden of proof in criminal matters lies with the prosecution is now old hat. There are of course, a few instances where the law provides for the converse, and shifts this duty to the accused, but that is not the case here. This principle is well captured in the time honored English case of Woolmington v DPP (1935) AC 462 where the Court stated: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12597/eng@2025-09-16 6

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“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject to the qualification involving the defence of insanity and to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether the offence was committed by him, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.” 28. The Court of Appeal in the case of Simon Mwangi Wambui v Republic [2014] eKLR held that the duty of the prosecution in criminal cases on burden of proof following Woolmington (supra) must be beyond reasonable doubt as hereunder: “ We agree with counsel for the Appellant that it is the duty of the prosecution to prove the guilt of an accused person and that if at the end of the whole case there is reasonable doubt created by the evidence given by either the prosecution or the defense as to the guilt of the accused then the prosecution has not made out the case and the accused is entitled to an acquittal. That is the principle that emerges from the House of Lords decision in Woolmington v DPP [1935] All E R 1 to which we were referred.” 29. The prosecution was under obligation prove several ingredients namely; age of the complainant, penetration, the identity of the perpetrator and position the Appellant held at [Particulars Withheld]. 30. As regards the aspect of the age of the complainant, the investigating officer (PW4) produced a birth certificate of the complainant which indicated that she was born on 26/12/2007. This then placed her at about 15 years 8 months at the time of the offence which confirmed that the complainant was a minor. In the same vein, the Appellant claimed that the birth certificate was a forgery in that the names of the parents of the minor on the certificate were not the names of the biological parents. I am of the view that the said argument is immaterial in a defilement case simply because it does not affect the exact age of the minor. The same may have been useful in a case of paternity. Even if the parents of the complainant were dead or missing, the complainant was entitled to present her complaint for determination by the court and that the key question for determination is whether she was a minor within the meaning of section 2 of the Children’s Act which places any person below the age of 18 as a child or minor. Hence, the details regarding the identity of the complainant’s biological parents were not material to the case at hand. I find the Appellant’s ground in that regard must therefore fail. I find that the Respondent proved the said ingredient beyond reasonable doubt. 31. The other ingredient crucial to be proved is penetration. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person. The complainant testified that: “Someday, he called me to grade 2 classroom. It was in term one. It was around 2.00pm. There was none present in the classroom. He instructed me to remove my clothes. He then slept with me. I did not resist or scream, I was scared of him. After that he asked me to go to class” … (page 7, lines 6 to 9 of the record of appeal) “ That was not the only time he had sexual intercourse with me. There was also one Saturday in the morning, we went to school. He summoned me to his office. He asked me to remain behind as others left for their homes. I remained behind. He asked me to go to his office and wait for him. It was around 4.00pm. He instructed me to spread a mat on the floor. He again told me to remove my clothes. He also stripped naked. He slept with me. He took his https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12597/eng@2025-09-16 7

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penis and inserted in my vagina. We were there until 5.00pm. I did not report. It was in term two…”(page 7, lines 10 to 17 of the record of appeal). 32. The clinical officer, Ivy Achieng (PW3) testified that she examined the complainant and noted that the hymen was broken, though not freshly broken and concluded that indeed the minor had been defiled. She duly produced the P3 form, treatment notes, Lab request form, and PRC form as exhibit. It is noted that under section 124 of the Evidence Act, the evidence of a minor is sufficient to prove a sexual offence and that it needs no corroboration. Indeed, the learned trial magistrate sought reliance under section 124 of the Evidence Act and was satisfied that the complainant spoke the truth. I find that the ingredient of penetration was sufficiently proved by the Respondent beyond any reasonable doubt. 33. As regards the aspect of the identity of the perpetrator, the Complainant testified that she knows the Appellant as her head teacher at [Particulars Withheld]. She stated as follows: “ I know the Accused person. He is Nicholas Otieno. He is my teacher at [Particulars Withheld]. He is the head teacher.” (page 6, lines 23-24 of the record of appeal) The appellant testified on cross examination and stated that: “I am the head teacher of [Particulars Withheld]. I was transferred after this incident. I know Susan Awino as a student in my school.” (page 27 lines 18-19 of the record of appeal) “I was closer to the Complainant being the head teacher of the school” (page 27 line 27 of the record of appeal) 34. In Wamunga vs Republic (1989) KLR 424 the Court of Appeal stated as follows regarding the evidence of identification generally: “ It is trite law that where the only evidence against a defendant is evidence on identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.” 35. Similarly, the Court further cited its own decision in Abdala bin Wendo & Another vs Republic (1953), 20 EACA 166 where it held: “ Subject to certain well known exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to the guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.” 36. In the case of Reuben Taabu Anjononi & 2 others vs Republic (1980)eKLR the Court of Appeal in Nairobi held that : “ …. recognition not identification of assailants is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant…” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12597/eng@2025-09-16 8

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From the foregoing authorities and the evidence of the complainant and Appellant, it is clear that the Appellant was not a stranger to the Complainant. This was not a case of identification but of recognition. 37. In the case of Abanga Alias Onyango –Vs- R, Criminal Appeal No. 32/1990, the court stated that circumstantial evidence should be such that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused. 38. Taking into account the above circumstances of this case, I am convinced that the identity of the perpetrator points to none other than the Appellant as the person who defiled the Complainant in count one. That being the position, I find that the finding on conviction by the learned trial magistrate on count one was sound and must thus be upheld. 39. As regards count two, the same is brought under Section 24(4) of the Sexual Offences Act which provides as follows: Section 24 (4) Any person who being the head-teacher, teacher or employee in a primary or secondary school or special institution of learning whether formal or informal, takes advantage of his or her official position and induces or seduces a pupil or student to have sexual intercourse with him or her or commits any other offence under this Act, such sexual intercourse not amounting to the offence of rape or defilement, shall be guilty of an offence of abuse of position of authority and shall be liable upon conviction to imprisonment for a term of not less than ten years. The record bears witness to the fact that the Appellant was a head teacher at [Particulars Withheld] where the Complainant was a pupil. The complainant confirmed the same when she stated “I know the Accused person. He is Nicholas Otieno. He is my teacher at [Particulars Withheld]. He is the head teacher.” (page 6, lines 23-24 of the record of appeal). Again, the Appellant in his defence and cross-examination stated “I am the head teacher of [Particulars Withheld]. I was transferred after this incident. I know Susan Awino as a student in my school.” (page 27 lines 18-19 of the record of appeal).“I was more close to the Complainant being the head teacher of the school” (page 27 line 27 of the record of appeal). This therefore placed him in a position of authority over the Complainant. He was thus under a legal duty to protect and guide the Complainant. However, he went ahead and seduced the Complainant and later defiled her. This then makes him culpable for the offence of abuse of authority under section 24(4) of the Act. I am satisfied that the second count was proved beyond reasonable doubt as by law required and hence the finding on conviction by the learned trial magistrate was quite sound and must be upheld. 40. As regards sentences, it is noted that the trial court imposed a sentence of 15 years imprisonment on count one and a sentence of 10 years on count two and ordered the same to run concurrently. I find the sentences were not excessive as they are the minimum possible in law. It is also noted that the Appellant managed to post bail and during the trial until he later absconded forcing the surety to pull out and was ordered to remain in custody on 7/5/2024. Hence, the sentences should commence from that date. 41. In the result, and save only that the sentences imposed shall commence from the 7/5/2024, the Appellant’s appeal is devoid of any merit. The same is dismissed. The conviction and sentences are upheld. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12597/eng@2025-09-16 9

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It is so ordered. DATED AND DELIVERED AT SIAYA THIS 16 TH DAY OF SEPTEMBER 2025. D. KEMEI JUDGE . In the presence of: Nicholas Ochieng…………..……..Appellant Dola Indidis……………….for Appellant Soita.……………………..for Respondent Okumu….……………..Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12597/eng@2025-09-16 10

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