A Kiambu court has withheld a life jail term for to a security guard who was a fortnight ago convicted for defiling a seven year old minor at Gachororo area in Juja.
Thika Chief Magistrate Hon B.J. Bartoo threw out an appeal by Japheth Masila Ndambuki who pleaded to the court for a review of the case arguing that “the alleged charges were defective and that the prosecution failed to avail all witnesses necessary to prove its contradictory and inconsistent case beyond reasonable doubt”
The Convict who was a watchman at the time of the incident in 2015 had also expressed dissatisfaction that “ the trial court failed to appreciate the fact that my fundamental and constitutional rights to fair trial as enshrined under articles 25,49 and 50 of the constitution were blatantly flouted and violated as i stayed in custody for over 6 days before being produced to take plea. He also stated that his defence was not taken into consideration while passing over the sentence.
This being the first appeal, Justice Mumbi Ngugi clarified that the court had a duty to re-evaluate the evidence adduced before the trial court and reach its own conclusion bearing in mind that it had neither seen nor heard the witnesses.
During the trail witnesses told the court how the 7 year old was lured into a room while visiting her aunt near St. Paul’s Juja before she was defiled but one of the girls who witnessed the episode alerted neighbours.
Justice Ngugi had ruled that the suspect was known to the minor and her testimony that it was the soldier proved that he was implicated for sexual assault after a medical report indicated that the poor girl was defiled.
“ She was also taken to the police and when she was checked, she had blood in her private parts. She was then taken to hospital” witnesses told the court.
The complainant stated in cross-examination that she was told by her parents to come and say something that she was defiled when she was playing with another girl who was sent to get her.
The father of the complainant, PW2 was at work on the material day and when he returned home at about 5.00pm, he found women outside his sister’s house discussing his daughter. They reportedly told him that something had happened to his daughter and that she been defiled.
He had taken her to an AP Camp where he was referred to Juja police station and later to Thika Level 5 hospital .The doctor had informed him that the child had been defiled and had been given ARV’s.
Dr.Gichane who was PW3 had examined the complainant and completed the P3 form in which she indicated “the child had blood on her trousers, her hymen was broken and was bleeding” She had examined the child and found there was penetration. She also produced the P3 from and post rape care form and also gave her antibiotics and anti-HIV medicine. The doctor had examined the complainant the very day the defilement had occurred.
The investigating officer Leah Wabera had recorded the complainant’s statement after she had been taken to hospital for treatment. She then proceeded and charged the accused who was already in the cells with the offence. He had been taken to the station by neighbours.
When placed on his defence, he chose to make an unsworn statement in which he denied committing the offfence.He alleged that he had arrived home at around 11.00 a.m. He had been brought shoes to mend but he did not have some items so he went to Thika to get them. He returned at 5.00pm and as he had been called while at gachororo that he should not return home if he had defiled a child. He had gone with the crowd and the child to the police station where he was booked in.
Justice Mumbi noted that considering the prosecution evidence, and the defence, the court found that the prosecution had established that the child was 7 years old, that there had been penetration and that the appeallant was the perpetrator. “She found that the defence did not water down the prosecution case. She convicted the appeallant of the offence of defilement contrary to section 8(1) as read with section 8(2) of the sexual offences Act and sentenced him to life imprisonment.
On hearing of the appeal, the appeallant was represented by Mr.Onindo while the state appeared through prosecution counsel Mr.Donnex Ongira. In his submission on behalf of the appeallant, Mr.Onindo after a brief analysis of the prosecution evidence submitted that the prosecution fell short of proving its case. “It had failed to have the appeallant examined, even though it had every chance of doing so”He also noted that there was no corroboration of the prosecution case.He was of the opinion that other witnesses would have been called from the crowd or the girl who had taken the minor to the appeallant or the one who peeped and saw the duo after the defilement.
On his part, Mr. Ongira submitted that the evidence by the complainant was corroborated by that of her father who told the court that the women who examined the complainant had told him that she had been defiled and he took her to hospital where the sexual offence was confirmed. “Further corroboration was found in the evidence of Dr.Gichane who examined the child and indicated that it had been caused by a penile object.
Justice Mumbi said she found no merit in the grounds raised by the appeallant. Under section 124 of the evidence Act, she said the court can convict on the evidence of a victim of a sexual offences in cases where that is the only evidence available. The father had also rescued the appeallant from the mob that intended to lynch him and taken him to the AP camp.
“I therefore find no merit in this appeal and it is hereby dismissed and the conviction and sentence upheld” said Justice Mumbi.
The appeal was head by Justice Mumbi who was at the Kiambu high court for the service week programmed to decongest the backlog of pending cases. It was read by the seating Judge Justice Christine Meoli.
By Lydia Shiroya
