Man jailed for defiling teenager freed over shoddy investigation

The judge said that police officers are not experts in the medical field and, hence cannot give incriminating evidence that is prepared by a doctor. [iStockphoto]

The High Court has declared that the report produced by police cannot be the sole evidence to nail a defilement suspect.

Justice Nixon Sifuna ruled that only medical doctors can produce report on whether a minor has been defiled or not but not the police.

The judge also said baptism certificates cannot be used as proof of age in a defilement case.

In a judgment that sets a precedent on defilement trial, Prof Sifuna said that a pastor’s indication of age cannot also be taken as gospel truth since they are not trained in the same

Justice Sifuna was determining an appeal filed by Daniel Maina Nyambura who had been jailed for 15 years by the magistrate’s court for defilement.

“A baptism certificate as was the case here can only be evidence of baptism, and no more. It is merely evidence that one was baptised. Hence it is evidence of the fact and date of baptism alone; and not the date of birth or age of the subject,” he ruled.

At the same time, the Judge said that police officers are not experts in the medical field and, hence cannot give incriminating evidence that is prepared by a doctor.

“An Investigating officer is for instance neither a competent nor proper witness to produce a P3 form, other medical report (e.g a medical examination report, psychiatry report or mental assessment report or age assessment report). Those can only be produced by the proper or designated medical expert such as doctor, clinician, or relevant expert consultant,” the judge said.

He said if an investigating officer produces such documents, it would amount to hearsay as he is neither the author or originator of either birth certificates of medical reports.

The Judge asserted that such documents should either be produced by a designated person or the complainant.

“Investigating officer's evidence while producing these documents is mere hearsay, and the documents if produced by him as exhibits will have been improperly admitted. Hence such testimony and exhibits being adduced by the Investigating officer, will be of no evidential value,” he ruled.

“As for age evidence as in this case, a birth certificate should be produced by the complainant herself of age, or where she is a minor or under mental disability, her parent or guardian. Not the Investigating officer as happened in this case. That alone was improperly adduced evidence and a miscarriage,” he added.

Maina was charged with alleged defilement of a 15-year-old girl in 2019. He denied the charge.

After he was sentenced, he filed an appeal before the High Court arguing that the lower court erred by failing to analyse the evidence before it.  

In the magistrate court, the prosecution called four witnesses. The teen was the star witness

She narrated that on the material day, Maina who was her sister's lover, met her on the way to a supermarket.

The court heard that he lured the minor into his house and after threatening her, he allegedly removed his clothes, undressed her and defiled her.

The victim claimed that after committing the heinous act Maina escorted her to the supermarket.

The girl testified that she later narrated the ordeal to her mother, who then escorted her to Kangema Police Station.

The Director of Public Prosecution (DPP) opposed the appeal. He argued that the evidence produced in court was clear that the girl had been defiled.

The DPP claimed that the minor's testimony implicated Maina in the crime.

After hearing arguments of the parties in the case, Justice Sifuna observed that although the girl’s age was indicated as 15, there was a contradiction as she was also said to be 14 years in the P3 report produced in court. 

“With all these contradictions and inconsistencies in the complainant’s supportive documents on the element of age, which is a key element of the offence of defilement, it would have been prudent for the Investigating officer to escort or refer the complainant to a medical expert for an age assessment, and obtain an age assessment report that the expert would then have been called to produce,” the Judge said.

In his view, in the case, as in many such others, the poor girl was thrown under the bus as the investigator and the prosecution did not look at the glaring errors in the documents they replied in as evidence.

“It is such obvious lapses, recklessness, neglect and at times outright incompetence, that demand that a legal provision be adopted to provide for liability for such indolent, carefree, complacence, derelictive conduct or ineptitude of such investigators and prosecutors,” Justice Sifuna said.

The judge ordered Maina to be set free. He said that it was fatal error on the state’s side to have a medical report indicating there was defilement but the evidence was produced by a police officer.

The case sets a benchmark for other convicts or suspects who were jailed on the weight of medical reports produced by investigating officers to challenge the same.