Prosecution hitch occasions retrial of Kibwezi man accused of defiling minor
By Dennis Mbae
| January 13th 2016
NAIROBI: On February 9, 2013 Obedi Kilonzo met with a 13-year-old girl coming from the river to fetch water.
He allegedly way-laid her, forcefully took away the jericans she was carrying before dragging her into a nearby thicket where he defiled her.
Unknown to him, according to the case, the young girl’s mother was not too far away and she caught him committing the heinous act.
He however, fled the scene before she could pounce on him.
Mother and child reported the matter at Kibwezi Police Station where they obtained a P3 Form before seeking medical assistance at Makindu District Hospital.
The police immediately launched a search for Kilonzo and upon his arrest, he was arraigned before the Makindu Principal Magistrate charged with defiling a 13-year old girl.
He pleaded guilty to the offense and was sentenced to 20-years in jail. He however, immediately moved to the High Court in Machakos where he unsuccessfully challenged the ruling.
Undeterred, Kilonzo moved to the Court of Appeal in Nairobi, where he said his guilty plea was equivocal having been procured following a police beating.
He also pointed out that the charge sheet was defective due to discrepancy in dates when the alleged offense was committed. While the charge sheet indicated the offense was committed on February 10, 2013, the facts spelt out February 9, 2013.
The prosecution, in opposing the appeal, successfully argued that the slight variance in dates caused no prejudice and therefore could not invalidate Kilonzo’s conviction.
The appellate bench comprising Justices Martha Koome, George Kariuki, and Fatuma Sichale agreed with the prosecution.
The judges however, noted that failure to disclose the complainant’s age in the statement of facts was a serious omission that occasioned a miscarriage of justice.
They therefore ordered that Kilonzo, who had been in confinement for three years, be retried on the same charge before a magistrate other than the one who handled the case.
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