School head escapes life in jail for lack of evidence

By Wahome Thuku

Kenya: Mr Peter Kimanzi was a Deputy Headmaster and a mathematics teacher at a primary school in Machakos County. On February 21, 2011 something happened at the school which changed his life.

A Standard Four pupil at the school claimed that the teacher had defiled her in the staff room.

Kimanzi was taken before the Machakos Chief Magistrate court facing charges of defiling the girl contrary to Section 8(1) of the Sexual Offences Act. He was charged with an alternative count of indecent assault, contrary to Section 11(1) of the same Act. But under the alternative count, the charge sheet read that the girl was six years old. That makes a lot of difference in a defilement offence.

He denied the charges. The prosecution called four witnesses. The girl who was the first witness told the court that she was 10 years old. She claimed the teacher called her to the staff room at lunch hour and inquired why she was not been writing down the names of noise makers.

The girl told him that there were no noisemakers. The teacher allegedly threw her down, and defiled her. The girl testified that the teacher used to touch their breasts. She said she was taken to hospital the following day.

The girl’s father told the court that he reported the matter to police and then took his daughter to Athi River Medical Centre for treatment, from where she was referred to Machakos Hospital.

A medical report was produced by one Dr John Mutunga on behalf of a Dr Omolo who had examined the girl. It indicated the girl had some injuries in her private parts assessed as grievous harm.

Kimanzi was then put on his defence. He told the court that he was the deputy head teacher and the discipline master. 

On the material day he disciplined the girl and her siblings for reporting to school late. At around 8.30 pm their mother rang him seeking to know what he had done to her children and then switched off her phone. 

The accused told the magistrate that he was not alone at the staff room.  There were other teachers who had since been transferred from the school. 

Wrong principles

On December 7, 2012 Kimanzi was convicted and sentenced to life in prison. He appealed against the conviction and the sentence arguing that the charge sheet presented before the magistrate was defective and that the prosecution did not prove its case beyond reasonable doubt.

He also argued that the trial magistrate acted on wrong principles when he held that if there were other teachers in the staff room they would have testified. The magistrate had failed to observe that it was upon the prosecution to have summoned the teachers to testify.

The appeal went before Machakos judge Lilian Mutende. The judge looked at the first ground of appeal that the charge sheet was defective.

Kimanzi had been charged under section 8 (1) as read with Section 3 of the Sexual Offences Act, 2006. Section 8(3) provides that a person who commits an offence of defilement with a child between the age of 12 and 15 years is liable upon conviction to imprisonment for a term of not less than twenty years.

“To establish a charge of defilement, it is a prerequisite condition that the age of the complainant be established,” the judge said.

“In this case, looking at the main charge and its alternative, it would appear the investigation did not know the age of the child.  In the main charge it is stated the complainant was 10 years old while in the alternative count it is stated she was six years old.”

The doctor who examined her produced a child health card (immunisation card) which indicates the she was born on June 16, 2000.  However the card had some alterations in the names making it difficult for the court to conclude it had been issued to the girl.

The P3 (medical examination report), however, indicated that she was estimated as 10 years old.

“The issue to be determined is therefore whether the aforesaid defect in the charge caused any prejudice to the appellant as to occasion a miscarriage of justice or a violation of a fundamental right to a fair trial,” Justice Mutende said.

“In this case the appellant pleaded to the charge with a clear statement of the offence being defilement.  Particulars of the offence were detailed enough. Details of the charge forming ingredients thereof were stated.  The date, place and manner in which the offence was alleged to have been committed were stated.”

The judge held that Kimanzi was not prejudiced hence he could not be acquitted just because there was a substantive defect in the charge sheet.

The next issue was whether the case had been proved beyond reasonable doubt. The girl had testified that when the teacher threw her down he “removed her panties and put something hard inside her private parts and she felt something like water”. The medical report indicated there were bruises, a broken hymen but no tears, discharge or bleeding yet the girl had been taken to the hospital the following day.

“No evidence was adduced to suggest when the hymen was broken.  Without evidence of discharge or bleeding it cannot be said with certainty that the hymen was broken on February 21, 2011.  Therefore there is no evidence of the act of penetration,” the judge concluded.

Truth

Justice Mutende also faulted the trial magistrate for accepting the girl’s evidence without looking for corroboration.

“This is a case where the learned trial magistrate who took evidence of the child did not record any reasons in proceedings stating whether or not she was satisfied that the child told the truth. Similarly, in the judgment of the learned magistrate this is not alluded to,” the judge said.

On November 11, this year the judge ruled that the trial court had failed to analyse all the evidence on record before convicting the accused saying there was no proof of penetration of the child. 

With that Kimanzi’s appeal was allowed. The conviction was quashed and the sentence was set aside. After more that two and a half years of waiting for justice the teacher was set free.

The writer is a court reporter with the Standard Group

Email: wthuku@standardmedia.co.ke