He lodged an appeal at the High Court in Nyeri through lawyer Wahome Gikonyo. The appeal went before Judge J K Sergon. That was when failures of the prosecution came up.
Apparently, the man had been charged with defilement contrary to section 8(1) (2) of the Sexual Offences Act of 2006. That was another fatal mistake. Under the Act, Section 8(1) (2) does not exist.
What the police may have intended was to charge him under section 8(2), which states that a person who commits an offence of defilement with a child aged 11 years or less shall upon conviction be sentenced to imprisonment for life. Section 8 (1) of the Act only defines defilement.
As a matter of law you can never charge anyone with a crime that is not stated in writing.
Lawyer Wahome challenged the conviction on that ground.
He argued that the charge sheet placed before the magistrate in June 2007 was defective and the watchman should never have been convicted. The lawyer argued that his client had been prejudiced by the trial since it was mandatory for any charge to be based on a specific existing law.
The charge sheet had also not specified the actual date when the offence was committed.
Wahome submitted that the second charge was also defective since it only stated that the man had “unlawfully assaulted” contrary to Section 11(1) of the Sexual Offences Act by touching her private parts.
Section 11(1) states that any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than 10 years. Police should have used the words “committed indecent act” as used in the law.
The lawyer told the court that his client was prejudiced because the girl’s mother and the chief were not called to testify.
He asked the court to conclude that the withheld evidence would have weakened the prosecution’s case to the benefit of his client.