A man who was found guilty of defiling his girlfriend’s younger sister and slapped with a 15-year sentence is not a free man after his appeal was allowed.
Daniel Maina Nyambura who was charged with defiling a 15-year-old girl in 2019 appealed his conviction saying the lower court erred in finding him guilty.
It was alleged that on October 30 2019 in Gakira sub-location within Murang’a County, he intentionally defiled a 15-year-old girl.
In his judgemnt, Justice Nixon Sifuna set him free saying the prosecution did not prove the case against Nyambura.
He noted that at the trial court, only four witnesses were called the victim, her mother, Investigating officer and Coordinator of clinical services.
The girl had alleged that on that day, her sister’s boyfriend met her on the way to the supermarket and allegedly lured her to his house where he threatened and defiled her.
She further said that after defiling her, he escorted her to supermarket where she shopped and returned home.
She later told her mother what had happened who then took her to the police station to report the matter.
The judge noted that defilement occurs in private and secret places away from the public eye and the true story is known by the culprit and the victim.
However, he said the burden of proof is on the prosecution to prove that indeed the offence was committed
The Judge noted that the prosecution did not provide the minors birth certificate instead produced a baptismal card to prove her age.
“A Baptism certificate as the case here can only be evidence of baptism and no more. It is merely evidence that one was baptized” the court ruled.
The court also noted that the said baptismal card was dated November 1 2019 which is one month after the material date of the said offence which he noted was a bit curious and unusual.
The court wondered why the investigating officer did not escort or refer the girl to a medical expert for an age assessment so that they could obtain an age assessment report to court.
Justice Sifuna laid the blame squarely on the prosecution and the investigators saying they threw the poor girl under the bus because of the incompetence.
“It is such obvious lapses, recklessness, neglect and at times outright incompetence, that demand that a legal provision be adopted to prove a liability for such indolent, carefree, complacence, derelictive conduct, or ineptitude of such investigators and prosecutors” the judge ruled.
It is my finding that the prosecution failed to prove the age and whether the accused indeed defiled the girl saying the conviction by the lower court was improper.
