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Life imprisonment for defilement upheld

A life imprisonment sentence for a man who had pleaded not guilty to defiling an 8 year old girl at Mwendano village of Thika sub-county in 2016 has been upheld by Kiambu high court.
Justice Mumbi Ngugi dismissed the appeal after hearing it for the first time after the conviction on 15th June 2017 by Thika Principal Magistrate C.A.Otieno-Omondi.
Elias Nduati Mwangi also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act but the court convicted him on the main count after finding him guilty.
The minor told the court that the appellant lured her into her sister’s house where he defiled her while promising to give her sweets and maize. He was a neighbour to the minor’s sister.
The complainant who positively identified the accused in court testified that, (Nduati had found her asleep in her sister’s bed on the material day, where he then removed her shorts and pants and proceeded in the criminal act.
When she went home, she reported to her grandmother what had happened. The following day, she went to school and the class teacher noted that she was not sitting properly. The teacher enquired from her what had happened upon which she disclosed the experience. The teacher examined her and found blood on her underwear.
The teacher told her to be accompanied by her grandmother to school the following day. The grandmother who also testified had told the court that she had left the complainant at home the day before while she went to take care of her cows in the field. When she returned, she found the complainant sleeping.
She further told the court the following day when she was washing the complainant’s clothes she noticed her pants were blood stained. Upon enquiry, the granddaughter reported to her that the accused had defiled her and cautioned her not to report what had happened.
The court further heard that the grandmother had taken the complainant to Ndula dispensary and the doctor had confirmed that the child had been defiled. He advised that she be escorted to Kilimambogo police station where she was issued with a P3 form and to Thika level 5 where she was examined and the form filled by Dr. Uncono Gichau.
Another teacher Sabina Wanjiru Mwangi told the court that she noted that the child was withdrawn and had asked her class teacher if she had made the same observation. Upon enquiry, the complainant told her that she was bleeding from her private parts.
The appellant filed the appeal against both conviction and sentence through Dola and Magana & company advocates in which he raised 7 grounds in his appeal.
In his appeal, he stated that the trial magistrate in Thika erred in fact and in law by relying on inconsistent, contradictory and uncorroborated evidence adduced by the prosecution witnesses thus arriving at a wrong decision. That the court failed to accord the appellant the benefit of doubt and based her decision on insufficient evidence adduced by the witnesses and that the evidence did not connect the appellant to the offence.
He further averred that the prosecution had failed to prove their case against the appellant beyond reasonable doubt. That the court failed to appreciate and or analyze conditions surrounding the identification thus arriving at a wrong decision. He said the court failed to take precautions of sentencing the appellant based on single witness and that she failed to appreciate and or analyze evidence adduced before her thus arriving at a wrong decision and that the sentence was manifestly harsh.
When placed on his defense, he chose to give an unsworn statement in which he denied that he defiled the child. He told the court that he had been arrested on the basis that he had stolen a purse from a woman and on reaching the police station, he was charged with defilement.
In her judgment, Justice Mumbi Ngugi said the complainant was truthful, consistent, credible and convincing on how the defilement had occurred and by whom. The court noted that the complainant did not appear to be a coached witness as alluded by the appellant.
The appeal was heard by Justice Mumbi of Kericho high court during the service week when courts engage services of additional Judges to clear the backlog of pending cases. It was delivered on her behalf by the duty Judge Justice Christine Meoli.
Nduati was given 14 days to appeal.
By Lydia Shiroya

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