A convict jailed for life for defiling two minors got reprieve after he successfully appealed against the sentence and was instead committed to 20 years imprisonment.
James Waita Keli will now serve 20 years on each court which will run concurrently from 15th December 2016, which is the date of arraignment. He had been convicted and sentenced by Thika Senior Resident Magistrate Ms. Grace Omodho who is currently Principal Magistrate at the Kiambu Law court.
In his review during the service week, Justice Francis Majanja stated that the appellant lured the children to his house and sexually assaulted them. All this took place in the early evening which was sufficient time for the children to be familiar with him and then point him out when they were asked to do so shortly thereafter.
The judge noted that he had considered the question put to the children in cross examination by the appellant and nowhere was it suggested to them that they were forced to identify a random stranger. “I reject this line of defense and find that the appellant is the person who subjected the minors to acts of penetration” he said.
The court affirmed the offense of defilement and but disturbed the sentence for the appellant.
He had been charged and convicted on 2 counts of defilement contrary to section 8(1) and (2) of the sexual offenses ACT that on 14th Dec 2016 at Githurai 45 estate within Kiambu County he intentionally defiled 2 children aged 9 and 8 years. He was sentenced to life imprisonment on each count but the sentence on the second count was held in abeyance.
Dissatisfied with the outcome, he protested at the High Court filed in November 2020 saying the prosecution had failed to prove the case beyond reasonable doubt, and that he was not properly identified. He further argued that the evidence against him was inconsistent and contradictory and that it could not sustain a conviction.
The appellant also contended that the prosecution failed to call necessary witnesses and that the trial magistrate failed to consider his defense. The respondent supported the conviction and sentence in which their counsel submitted that the prosecution proved all elements of the offense of defilement in respect to the counts facing the appellant.
He stated that the sentence was within the law and was neither harsh nor excessive. In his review, all the evidence and come out with his own conclusion bearing in mind that he neither saw the witnesses testify in order to access their demeanor. He said the duo testified on oath to the effect that they were playing when the appellant called them into his house to wash his clothes.
That when they finished, he called them into his house and removed his trousers and innerwear. He also removed the panty of PW2 and defiled her. When he finished, he removed that of PW1 and repeated the act. He went ahead and bought them bhajia after which they left his house. They then reported to the mother of PW2 what had transpired.
The mother of PW2 who testified as the 3rd prosecution witness told the court that she was selling at the market while the 2 girls were playing in the field. At around 5 pm she noticed the children were missing and she started looking for them.
Together with an aunty to PW1, they intensified their search and spotted them walking towards the market, while carrying something which she later learnt was bhajia and that they were walking with their legs apart.
Upon interrogation, they declined to reveal the whereabouts of where they had been but were beaten up until they revealed that it was Kasee who sexually assaulted them. They confronted him but he denied and that he was later arrested by police who arrived at the scene as the crowd grew to have a glimpse of what had transpired.
Their ages were confirmed through their birth documents and a clinical officer who examined them produced medical reports that confirmed the defilement.
In his sworn defense, he denied the charges saying on the material day he was returning from work when he met the third and fourth witnesses who started shouting that he had defiled the two girls. He ran to a nearby clinic for his safety and that he did not know the children. He added that this was a case of mistaken identity.
By Lydia Shiloya