Man who defiled mentally ill girl to stay in prison for life after losing appeal

A man who defiled a mentally ill girl on March 15, 2015 has lost an appeal against a life sentence handed to him by a Kimilili magistrate’s court.

High Court judge Lilian Mutende ruled that Timothy Wafula, 28, was rightfully convicted and sentenced by the Kimilili Principal Magistrate’s Court in July 2017.

In his defence before the High Court in Bungoma, Wafula claimed the prosecution never gave forensic evidence and relied on “non-crucial” witnesses such as Nyumba Kumi officials to nail him.

He also claimed he was a minor by the time the alleged offence occurred at a village in Bungoma North and deserved to be treated as such by the trial court.

However, Wafula's claim he was underage when he defiled the girl, who was eight years old then, was discounted in court.

“In his mitigation before sentencing at the lower court, Wafula alleged he was 17-years -old. This prompted the court to call for an age assessment report. An assessment based on the fusion of epiphyseal growth plates established he was 21 years old,” Lady Justice Mutende said.

She added: “In the circumstances, he took advantage of a minor who was of tender age and mentally challenged. The lower court did not fall into error by sentencing him as provided by Statute.”

The argument that the prosecution failed to produce his DNA samples extracted from the minor to prove intercourse was rebutted by the State which cited Section 63 of the Evidence Act saying; “such is not mandatory in a case where evidence through say, eyewitnesses and medical, experts was overwhelming.”

The State also defended its stand of not putting the minor on the witness stand saying the complainant was a vulnerable witness and her mother testified on her behalf.

“The lower court equally determined, through a preliminary inquiry, that the minor had no capacity to testify owing to mental challenges,” said the prosecution.

Wafula wanted the girl to take to the witness stand arguing it would have turned around the case in his favour as she was a key witness in the case.

Another witness Wafula wanted in the dock but failed to be presented was the investigating officer.

Wafula lamented that the lower court relied on the testimony of a Nyumba Kumi official rather than the investigating officer who was more knowledgeable about the case.

“The court erred in accepting the evidence of the Nyumba Kumi chairman which was full of hearsay,” he said.

But the High Court, in upholding the sentence, said the investigating officer's testimony was not as important to the State which had, in any case, tried its best to have the officer testify to no avail.

“On July 16, 2015, the officer was in court but the prosecutor did not let him testify citing pressure of work. On November 19, 2015, he was available but Wafula asked for an adjournment on grounds of being unwell,” said Lady Justice Mutende in her judgment.

The judge added: “Thereafter it turned out that the investigating officer was attending training then the prosecution closed its case without his evidence.  Failure to call him was not detrimental as evidence from other witnesses was sufficient to prove the case.”

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