By Wahome Thuku

It’s about six years since the Sexual Offences Act came into force in 2006. But investigators and prosecutors of sexual offences are yet to grasp the content of that law.

And if the following case is anything to go by, a lot needs to be done in the prosecution of rape and defilement cases in Kenya.

In June 2007, Mr JTM (full name concealed), a primary school watchman at a village in Nyeri was arraigned before Karatina Senior Resident Magistrate charged with defiling his nine-year-old daughter.

The girl was a Standard Three pupil at the same school. According to the police, the incident happened on June 8, 2007. The father faced an alternative charge of committing indecent act to the girl.

During trial, the child was called to testify. She told the court how in June 2007, the father had done bad things to her repeatedly and had sex with her. She said she had reported to her mother and a teacher called Mrs Kimani.

Kimani was also called as a witness. She said she had noticed the girl had problems socialising with other children in school.

“When I interrogated her, she opened up and revealed to me how the father had been sexually assaulting her,” Kimani told the magistrate.

The teacher said she reported to the school head and the matter was taken to the local chief and police.

A third witness, Dr Sylvia Mutahi Wanjiru, told the court the girl gave her a history of repeated sexual assault. But there was no medical evidence of sexual nature gathered on her body.

The fourth witness was the police officer who investigated the case. The watchman also gave unsworn evidence and denied having committed the act.

The girl’s mother and the chief were never called to testify. That was one grave mistake because they were crucial witnesses. Nonetheless, the man was convicted on the first charge and sentenced to the mandatory life imprisonment.

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.

Key facts

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.

Major errors

The State counsel opposed the appeal saying the charges were not defective. She submitted that even if there were defects, they could be cured by Section 382 of the Criminal Procedure Code.

That section states that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal on account of an error or omission…before or during the trial unless the error has occasioned a failure of justice. The judge rejected that argument.

“Sad as it is, I agree that the charge sheet as framed was defective,” Justice Sergon held adding: “The defect was not corrected by the prosecution and, therefore, the appellant was prejudiced as he was charged with an offence which was not known to law and which was not in the Act.”

He further noted that the man should have been charged with incest by a male under Section 20(1) of the Sexual Offences Act, which attracts a minimum of ten years in jail.

The judge concurred that failure to call the girl’s mother and the chief to testify could be concluded their evidence would have been against the prosecution’s case.

“I must at this stage point out that this is a case where the police failed the complainant and since a doubt has been cast on the prosecution’s case I take the view that it’s better to release a guilty person than to keep an innocent man in prison,” the judge said.

“I have noted that the life of a young girl has been affected by an act allegedly committed to her by the father, but the rules here were put in place to guard against an innocent party being put in jail.”

Sergon held that the appeal had merit and allowed it.

On May 4, he quashed the conviction and set aside the sentence. After five years behind bars the watchman was set free.