Kiambu High Court has dismissed an appeal by a defiler who drugged a form 2 student for 6 days at Gatunyu village in Muranga County in 2015.
Doughlas Wepukulu Wanjala will therefore continue to serve the 15 years which had been imposed upon him by the Thika Senior Resident Magistrate in April 2018 for the offence of defilement.
The particulars of the case were that on diverse dates June 26 and July 1 2015 at Gatanga sub-county of Muranga he unlawfully defiled the minor aged 17 years.
The prosecution called six witnesses who summed up their evidence that the complaint was on mid-term and had visited her grandmother at a place called Gatunyu. That on 26th June, while still in the custody of her grandmother, she and her cousin went to the nearby market to buy groceries.
After they were done, they parted ways and she went to a salon to have her hair done. By the time she was done it was late and she could not recall the direction to her grandmother’s home and she was not very familiar with the place. It was as she was asking for directions that she encountered the appellant. Shortly after she spoke to him, she lost consciousness only to find herself in his house.
The appellant upon conviction by Snr. Resident Magistrate Vicky Kachuodho at the Thika law courts moved to the high court on grounds that the lower court had erred in both law and facts and that the prosecution case was not proved beyond reasonable doubt, no exhibits were produced for his perusal and that the truth about defilement was not proved through P3 or other medical supportive evidence
He was also aggrieved that the complainant was not truthful, a vital witness was not bonded to testify against him and the evidence was inconsistent, contradictory and incredible which wouldn’t amount to a safe and secure conviction and sentence.
Upon hearing the appeal during the September 2020 Service Week, Lady Justice Esther Maina ruled that it was proved beyond reasonable doubt that at the material time the complainant was still a child (seventeen years).
In his defence, the appellant admitted that he took her to his house and lived with her for 6 days as his friend. It was his evidence that she lived with him out of her own free will and that he even went out shopping with her and introduced her to his friends. That he had sexual intercourse with her is therefore not in doubt, she stated.
“His grounds of appeal therefore fly in the face of the defence he mentioned in the lower court as do most of his submissions as him having had sexual intercourse with the complainant was proved beyond reasonable doubt,” said Justice Maina.
She added that the complainant gave consistent evidence that she did not go to the appellant’s house out of her own free will.
She stated that she was drugged; that she started feeling dizzy and then lost consciousness after a brief conversation with the appellant only to find herself in his house.
She also stated that he forced her to do house chores around the house and that he would threaten her. She also testified that she disclosed to him her age and that she was in school.
The prosecution called the appellant’s landlord Moses Mugure as PW3. In his evidence he stated the complainant was freely moving in the compound even when the appellant was not there. He confirmed that she was doing house chores and never complained that she was in trouble. It was his evidence that she appeared to be an adult.
The complainant told the court that the appellant used to put some medicine in her food and “to me that would explain why she appeared docile to PW3. I believe the complainant’s account on what transpired. This is because she was very consistent and her testimony was corroborated by the rest of the witnesses none of whom could have a reason to fabricate evidence against the accused.
After hearing the appeal when the court had visiting judicial officers to help decongest the backlog, the sentence was read by Duty Judge Justice Christine Meoli who has since been transferred to Milimani law courts.
Meanwhile, Lady Justice Mary Kasango has taken over as Kiambu High Court Judge, a position she assumed from November 2020.
By Lydia Shiloya