A villager’s touchy hands landed him in the cold cells for almost three years where he has been cooling his heels before the High Court intervened last week to set him free.
Mjomba Damas from Taita Taveta County has been in police custody for the better part of the last three years after he was found guilty of fondling and suckling the breasts of a 14-year-old girl.
The court heard that Damas, while strolling along the village footpath, found the young girl’s shy breasts hard to resist that he pulled her into a maize plantation and began to touch her inappropriately while using his tongue on her nipples.
The young girl, whose identity remains hidden, was on her way home from church. She told the court she could not scream for help because Damas had held her by the throat as he fiddled with her bosom.
The ordeal, the court heard, went on for a while until after the girl’s sister repeatedly called out her name, prompting Damas to let go of her.
When the matter was taken to the magistrate court in Taita, the magistrate sentenced Damas to ten years in jail. A remorseful Damas, however, appealed the penalty at the High Court, pleading for leniency. He, through his lawyer, argued that the penalty was harsh for his deteriorating health, seeing as he was suffering from gastro infection, ulcers and a weakening heart.
Justice Jaqueline Kamau bought Damas’ argument and reversed the penalty, arguing that the case built by the prosecution was not solid enough for such a punishment.
The high court also called the sister to Damas’ accuser to give her side of the story. She said that she ran to the scene, called out the victim’s name and they (victim and the accused) came out of the maize plantation together.
She claimed that the appellant admitted to having indecently touched the girl. But Justice Kamau took their evidence with a pinch of salt. She questioned the why it had taken the victim’s sister long to respond and how she knew her sister was undergoing such an ordeal yet she confesses that she never screamed.
She also questioned how the man would have multi-tasked, grabbing the teen on the neck and at same time rubbing and suckling her breasts.
“Something did not add up from the way this evidence was tendered,” the judge observed. “This court was also concerned by the fact that the appellant continued grabbing and sucking prosecution witness one (victim) breasts for an hour but she did not scream or attempt to run away.” Justice Kamau also noted that Damas’ sworn evidence did not also help his case as he could not explain where he was on the material day. He did not also have any witness to support his innocence.
The High Court judge, however, gave him a benefit of doubt, as the burden was on the prosecution to prove its case. “The prosecution did not prove its case beyond reasonable doubt. There were too many inconsistencies,” Justice Kamau ruled.
