Erick Muchemi Ngobe v Republic

5. On Saturday, 10th September 2022, at about 10:00 a.m., PW1 arrived alone at school and waited in Class 5. The Appellant arrived later. PW1 stated that the Appellant had previously inserted his penis into PW1’s anus on multiple occasions (every day except Sundays, starting when PW1 was in Class 4), causing pain, and had threatened to kill PW1’s mother or grandmother if he disclosed the acts. The Appellant had also promised marriage once PW1 attained eighteen years and had shown him pornography on his mobile phone. 6. On 10th September 2022, the Appellant instructed PW1 to remove his clothes. When PW1 refused, the Appellant forcibly removed PW1’s trousers, shorts and boxer, kissed him, and inserted his penis into PW1’s anus. PW1 observed liquid from his anus thereafter. The Deputy Head teacher, W (PW3), peeped through the window of Grade 3 classroom and observed the act. When he questioned the Appellant and attempted to enter, the Appellant closed the door. PW3 summoned the secretary, the director’s mother and sister. The Appellant hurriedly directed PW1 to dress and they exited the classroom. 7. As they descended stairs, PW3 held PW1’s hand. The Appellant attempted to flee but was intercepted by others. PW1 was taken to the director’s mother’s house, the director was summoned, PW1’s mother (PW2) was called, and the matter reported at Mutuini Police Station. PW1 was conveyed to Nairobi Women’s Hospital for examination and treatment. 8. PW2, EW, mother of PW1, testified that on 10th September 2022 at about 2:00 p.m. she was summoned to school by the director. Deputy Head teacher W explained what he had witnessed. She reported the matter at Mutuini Police Station and accompanied PW1 to Nairobi Women’s Hospital. She produced the birth certificate confirming PW1’s age. She noted behavioural changes in PW1 prior to the incident, including failure to do homework and pain during defecation. She was present during the medical examination and received the PRC, GBVRC and P3 forms. On cross-examination, she confirmed she is not married to PW1’s biological father and that the family residence is approximately 100 metres from the school. 9. PW3, W, the Deputy Head teacher testified that on 10th September 2022 (a Saturday) he was supervising learners’ books from 9:00 a.m. Around 2:00 p.m., while checking Grade 3 classroom through the window, he observed the Appellant lying near the door wearing only his underwear. Upon questioning, the Appellant denied anything amiss. PW3 pushed the door which resisted, returned to the window, and saw PW1 attempting to dress while the Appellant remained half-naked. PW3 summoned the director’s mother and sister, then the secretary (Victor). The Appellant exited to the toilets. PW1 attempted to flee but was intercepted. 10. PW3 produced the class register confirming PW1’s enrolment in Class 5 (2022) under the Appellant’s tutelage. On cross-examination, PW3 denied any grudge against the Appellant and confirmed no coercion during PW1’s interrogation. 11. The medical report admitted through the clinician PW3 confirmed examination of PW1 at Nairobi Women’s Hospital. History of penile-anal penetration was noted. Examination revealed anal lacerations at 6 o’clock and 12 o’clock positions with pain but no active bleeding or general injuries. Findings were consistent with the history. Prophylactic treatment was administered. 12. In his defence, the appellant stated that minor had a problem with constipation. On 10th September 2022, confirmed that the complainant was indeed at the school. He testified that he was not friendly thus the fabricated claim. He maintained his innocence. 13. The appellant is accordingly found guilty as charged. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3059/eng@2026-03-05 2

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14. The appeal was canvassed by way of written submissions, which have been duly considered, and there is no need to rehash them. 15. To succeed in a prosecution for defilement, it must be proven that the appellant committed an act that caused penetration with a child. "Penetration" under Section 2 of the Act means, "the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 16. Further, section 8(1) and (2) of the Sexual Offences Act, No. 3 of 2006 provides thus: 8. Defilement (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. 17. On the element of age, the complainant, PW1 testified that that he was born on 12 August 2011. His birth certificate was produced by the investigating officer At the material time of the offences in September 2022, he was eleven years old. This evidence was not challenged. The prosecution thus established beyond reasonable doubt that the victim was a child under the age of eighteen years as required by section 8(1) of the Sexual Offences Act. 18. On the element of penetration, PW1 gave a clear, detailed and consistent account in his sworn testimony. He stated that the Appellant (his class teacher) had repeatedly inserted his penis into PW1’s anus, commencing when PW1 was in Class 4, occurring almost daily except Sundays, in the girls’ toilets and other classrooms. On the specific incident of 10th September 2022, the Appellant forcibly removed PW1’s trousers, shorts and boxer, kissed him, and inserted his penis into PW1’s anus, after which PW1 observed liquid from his anus. PW1 experienced pain on each occasion. 19. This direct oral evidence of penetration was materially corroborated by the medical examination conducted by the clinician at Nairobi Women’s Hospital on 10th September 2022. The P3 Form, PRC Form and GBVRC Form confirmed anal lacerations at the 6 o’clock and 12 o’clock positions with pain but no active bleeding. The history and findings were consistent with repeated penile-anal penetration. No alternative cause was suggested or supported by the evidence. 20. On the identity of the perpetrator, PW1 was firm, consistent and unshaken in identifying the Appellant as his Home Science, P.E., Agriculture Science and C.R.E. teacher who committed the acts. He described the Appellant’s threats to kill PW1’s mother or grandmother if he disclosed the abuse, promises of marriage at age eighteen, and showing of pornography on his mobile phone. PW3, W, the Deputy Head teacher, directly observed the Appellant half-naked lying near the door of Grade 3 classroom with PW1 attempting to dress, questioned him, and called for assistance. 21. PW3 confirmed the close association between the Appellant and PW1, including late stays and his presence on Saturday, and that PW1 disclosed repeated sodomy facilitated by threats. PW2, PW1’s mother, confirmed the Appellant was PW1’s class teacher and noted prior behavioural changes and pain during defecation. The identification evidence withstood cross-examination and no suggestion of mistaken identity or fabrication was substantiated. 22. In his defence, the appellant maintained his innocence. His case rested on cross-examination challenging details of observation, proximity and opportunity, but no affirmative evidence was adduced to contradict the prosecution case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3059/eng@2026-03-05 3

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23. Upon careful consideration, the Appellant’s defence fails to create any reasonable doubt. PW1’s testimony was coherent, detailed and believable. It was strongly supported by PW3’s eyewitness account of the 10th September 2022 incident, PW2’s corroboration of prior indicators and living arrangements, the independent medical evidence confirming anal injuries consistent with penetration, and the absence of any proved motive or grudge. Pursuant to section 124 of the Evidence Act, conviction may rest on the evidence of the victim alone where the court is satisfied he is truthful. Here, PW1’s evidence was credible and materially corroborated. 24. In the result, the essential elements of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act have been proved beyond reasonable doubt. The conviction is accordingly affirmed. 25. On sentence, the appellant was sentenced to serve life imprisonment. The record shows that the trial court considered the appellant’s mitigation and the fact that he was a first offender before arriving at that sentence. The sentence imposed was legal and I see no reason to interfere. 26. In the premises, the appeal is found to be lacking in merit and is dismissed in its entirety. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 5TH DAY OF MARCH 2026 ______________ D. KAVEDZA JUDGE In the presence of: Mr. Odhiambo for the Appellant Mr. Mutuma for the Respondent Karimi Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3059/eng@2026-03-05 4

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