Hezekiah Ogany Omollo v Republic

proceeded to Room 5 Green, where the appellant was alone. The appellant hugged and kissed him on the lips before instructing him to go home. He did not disclose the incident to anyone at that time. Later the same year, the appellant repeated the act. 5. On a subsequent Saturday, while the pupils were in class, the appellant gave them an assignment. Upon collecting PW1’s book for marking, the appellant directed him to follow him to Class 5 Blue. PW1 found the appellant alone during break time. The appellant hugged and kissed him, undressed him, and inserted his penis into the minor’s anus. PW1 stated that the appellant penetrated him for approximately two hours and also sucked his penis. 6. On returning home, PW1 experienced significant pain and walked with difficulty. He did not immediately disclose the incident. The following day, he reported the matter to his uncle, Bob. The uncle waited the minor’s mother (PW3) and informed her. PW3 then notified the minor’s father. The next day, PW1’s parents visited the school, after which the minor was taken to Nairobi Women’s Hospital for medical examination. 7. During cross-examination, PW1 remained firm and confirmed that the appellant sodomised him on a Saturday. 8. PW2, John Njuguna, a medical officer at Nairobi Women’s Hospital, testified that the minor presented with a history of defilement. Tests for STIs and HIV were negative. The history and findings were consistent with anal penetration, including a tear to the anus. 9. In cross-examination, PW2 acknowledged that anal tears may result from constipation but confirmed that, based on the history provided, the tear in this case was caused by anal penetration. 10. PW3, LKN, mother of PW1, corroborated her son’s account. She stated that she had asked her brother to speak to the children regarding abuse of the maid. PW1 then requested a private conversation, dismissed the other children, and disclosed to PW3’s brother that the appellant had been sexually assaulting him. PW3, while crying, informed her mother, who summoned their neighbour Jackie. Jackie contacted the police. The minor was taken to hospital the following morning. PW1 repeated the allegations to PW3. She confronted the class teacher without success and threatened to report the matter to the police, prompting contact from the headteacher. 11. When they visited the school, PW3 alleged attempts were made by the headteacher to bribe her to withdraw the complaint due to his close association with the appellant. The minor was examined at Nairobi Women’s Hospital, where the doctor observed that the minor’s anus was enlarged and lax, permitting easy insertion of two fingers. The matter was subsequently reported at Kilimani Police Station. 12. PW4, Lamech Kimori Nyang’au, brother of PW3, testified that while at his sister’s house, PW1 requested a private talk and disclosed that the appellant had been sexually assaulting him. His evidence corroborated that of PW1. PW4 immediately informed PW3. During cross-examination, PW4 stated that PW1 reported that the appellant used to sodomise him on Saturdays and specifically named the appellant. 13. PW5, Corporal Oreo Ngelechei of Kibera Police Station, corroborated the evidence of PW1, PW2, PW3 and PW4. On cross-examination, he confirmed that the charge was based on the minor’s account and the medical evidence. 14. In his defence, the appellant admitted that he was the minor’s teacher. He alleged that the case was a fabrication due bad blood between the community and the headteacher. He denied the allegations and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6427/eng@2026-05-14 2

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also stated that his troubles started when he called the PW1’s parents due to bad performance but they failed to show up. He was then arrested by police officers, and charged with the ofience of defilement. 15. After a full trial, the appellant was convicted accordingly. 16. The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them. 17. 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.” 18. Further, section 8(1) and (3) 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 ofience termed defilement. (3) A person who commits an ofience 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. 19. PW3, mother to PW1, produced his clinic card in evidence, establishing that he was born on 18th March 2005. He was therefore thirteen (13) years of age at the time of the alleged ofience. The age ingredient of the ofience of defilement under section 8(3) of the Sexual Offences Act was proved beyond reasonable doubt. 20. On the element of penetration, section 2 of the Sexual Offences Act defines the act as including any partial or complete insertion of the genital organs of one person into those of another. PW1 gave a clear and detailed account. He testified that on the material dates, the appellant would summon him, hug and kiss him on the lips, then release him. On the Saturday in question, while classes were ongoing, the appellant undressed him and defiled him by inserting his penis into the minor’s anus. 21. This direct evidence of penetration was corroborated by the medical evidence of PW2, John Njuguna, a clinician at Nairobi Women’s Hospital. The P3 form and clinical notes confirmed anal penetration and a tear on the anus. These findings were consistent with penile anal penetration and supported PW1’s testimony. 22. On identification, PW1 was resolute that the perpetrator was the appellant, his known class teacher who taught him Mathematics and Science. He gave a consistent and unshaken account throughout examination-in-chief and cross-examination. PW3, LKN, his mother, confirmed that the appellant was PW1’s teacher. The appellant, in his defence, did not dispute being the minor’s teacher. 23. The appellant denied the allegations. He claimed the accusations stemmed from bad blood between the community and the headteacher. He maintained that the allegations arose from community animosity towards the headteacher and asserted a good working relationship with him. 24. This Court finds the appellant’s defence of fabrication implausible and unsupported by evidence. It raises no reasonable doubt against the cogent, consistent and mutually corroborative prosecution case. 25. The prosecution proved all essential elements of defilement contrary to section 8(3) of the Sexual Offences Act beyond reasonable doubt. The conviction is affirmed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6427/eng@2026-05-14 3

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26. The appellant was sentenced to fifteen (15) years imprisonment. During sentencing, the court considered the pre-sentence report, the appellant's mitigation, and that he was a first ofiender, and that he had spent approximately one and half years in remand custody. 27. However, section 8(3) of the Sexual Offences Act prescribes a mandatory minimum sentence of twenty (20) years imprisonment where the victim is between the ages of twelve and fifteen years. 28. In the present case, the complainant was aged 13 years at the time of the ofience. Further, the ofience was aggravated by the relationship between the complainant and the Appellant. The Appellant was the complainant’s teacher and therefore occupied a position of trust, authority and responsibility, owing the minor a duty of care and protection. Instead of safeguarding the complainant, the Appellant exploited that position to perpetrate the ofience. That circumstance considerably aggravates the gravity of the ofience. 29. The sentence of fifteen (15) years imprisonment imposed by the trial court was therefore below the minimum sentence prescribed by law, notwithstanding the period of one year and six months spent in remand custody. 30. In the circumstances, the sentence of fifteen (15) years imprisonment is hereby set aside and substituted with a sentence of twenty (20) years imprisonment in compliance with section 8(3) of the Sexual Offences Act. Pursuant to section 333(2) of the Criminal Procedure Code, the period of one (1) year and four (4) months and nine (9) days spent in remand custody shall be considered in computing the sentence. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 14TH DAY OF MAY 2026 ................................. D. KAVEDZA JUDGE In the presence of: Appellant Present Kamau for the Respondent Karimi Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6427/eng@2026-05-14 4

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