A man facing defilement charges but has been in custody for over three years pending determination of the case now wants court to grant his release because his files are missing.
John Githinji Gatimu who was charged with defiling two minors at Ndenderu village of Kiambaa sub-county in Kiambu County pleaded for his release on grounds that the case could not move since the court files went missing.
He asked Kiambu Chief Magistrate, Ms. Stella Atambo that he had suffered long enough in remand cells due to the never ending applications for adjournment by the prosecution
“I have been suffering in custody and the prosecution always seek for adjournment of the matter and so I pray the court to consider my plight as there have been several adjournments” he told the magistrate yesterday.
During the proceedings, Mr. Stephen Kasyoka, the prosecution Counsel had applied for the last adjournment saying that the police file had been misplaced and that they required to reconstruct a skeleton file for the accused person.
The magistrate rejected the application and noted that this was an old matter whereby the accused has been in custody for over 3 years. “Records confirm that the prosecution has been granted several last adjournments to wind up their evidence but it has been in vain. How long can it take you to construct another file? She posed.
She continued to state that justice must not only be done but seen to have been done and both the complainant and the accused person must be given fair and equal treatment.
At this juncture, the prosecutor applied to withdraw the case under section 87(a) but his attempt was thwarted when the accused said he wanted to be released unconditionally. This section allows the police to rearrest an accused person once they gather any other evidence that can enable them to re-open their case and charge him afresh.
He then left the court to decide on the way forward after he was given a minute to consult after switching off his speaker.
The accused was charged that on 14th February 2018, at Ndenderu village within Kiambaa sub-county of Kiambu county he unlawfully caused his genital organ to penetrate that of a 9-year-old girl. In the second count, he unlawfully committed the same offense to another aged 6 years.
He faced 2 alternative counts of separately committing an indecent act with a child contrary to section 11(1) of the sexual offenses Act No.3 of 2006. He pleaded not guilty to all the counts and the case was scheduled for hearing after he failed to raise a bond of 250,000 shillings.
Even after the Covid-19 outbreak in the country, the bond was reduced to 80,000 shillings but his family cannot afford to bail him out.
The hearing was disrupted after 3 witnesses testified and the prosecution is yet to close their case. Ms. Atambo will now give her judgment on April 30th after perusing the file.
By Lydia Shiloya