How prosecution errors let defilement convict walk free
A retired athlete and a coach have been sentenced by a JKIA court to one and half years and one year in jail, respectively, for fabricating documents with a view to tarnishing Kenya's image as a doping haven
A man who was convicted and jailed for 15 years for allegedly defiling a minor has walked free because of mistakes made by the investigating officer and the prosecution in the case.
Dominic Maina Nyambura, who was jailed for 15 years in January 2020, walked free on appeal after the High Court faulted the investigating officer - Isaiah Jillo - for producing key documents such as the P3 form and baptism card to prove the offence and the age of the victim.
Justice Nixon Sifuna discharged Maina, saying that although the P3 form confirmed that the offence had been committed, the investigating officer did not have the knowledge or qualification to comment on the contents of medical findings such as the clinical notes. A fatal omission, he said.
On the age of the victim, the judge said that a baptism card showing the age of the girl was only evidence of baptism and did not prove the date of birth or age of the person.
“I hold that a baptism card or baptism certificate as the case may be is neither equivalent to, synonymous with, approximate to nor a substitute for a birth certificate, a birth notification certificate or even an age assessment report,” said the judge.
Maina was convicted and sent to prison on January 28, 2020, by Kangema Senior Principal Magistrate P M Kiama.
The charge against him was that he committed the offence on October 30, 2019, at Gakira sub-location in Murang'a County. The court was informed that the victim was 15 years old.
He acted in person and called three people in his defence.
Maina was dissatisfied with both the conviction and sentence and appealed.
Her sister's lover
The witnesses included the girl, her mother, the investigating officer, Mr Jillo, and an official from Murang'a Level 5 Hospital.
The girl said Maina was her sister's lover. She said he lured her to his house on her way to a supermarket and after threatening her, defiled her.
After the ordeal, she went to the supermarket and later reported the incident to her mother. The case was reported to Kangema police station before she was taken to hospital for treatment.
During the hearing, the prosecution produced a copy of the baptism card dated November 1, 2019, as well as the treatment notes from the hospital and the P3 form.
The judge noted that in cases of sexual offences, the burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt.
According to Prof Sifuna, where there is reasonable doubt, the advantage goes to the accused.
The judge said the prosecution has to prove three things including the age of the victim, that there was penetration and the identity of the perpetrator.
“If the prosecution fails even on the limb of age alone, the entire case collapses and there will be no need for the court to proceed to the two other elements,” the judge said.
Appropriate documentary evidence
The judge pointed out that after stating that she was 15 years old, the complainant's age must be supported by medical evidence or other appropriate documentary evidence such as a birth certificate.
Justice Sifuna added that the medical evidence should be in the form of an age assessment report, a birth certificate or other official document stating the date of birth.
A baptism card, the judge said, is only evidence that one has been baptised and not the date of birth or the age of the person.
The judge said another issue is whether the investigating officer is the proper witness to produce such documents.
Justice Sifuna said there are exhibits and documents that the investigating officer may not be competent (under the law of evidence) to produce because of lack of capacity or by operation of law.
“I hold that they’re not competent to produce contentious documents or documents ordinarily expected to be in the custody of the complainant or the complainant’s witness or in the custody of a government office,” said the judge.
Government official
He said that for such documents, the complainant or a designated government official should produce them.
He said if the investigating officer produces the documents, the documents would be mere hearsay and would have no evidential value.
The court observed that it was not clear whether the girl was 14 or 15 years old because of inconsistencies in the documents.
“With all these contradictions and inconsistencies in the complainant’s supportive documents on the element of age, which is a key element of the offence of defilement, it would have been prudent for the investigating officer to escort or refer the complainant to a medical expert for age assessment and obtain an age assessment report that the expert would then have to be called to produce,” said the judge.
The court said the prosecution had failed to prove the offence of defilement, leaving the court's conviction of the accused hanging in the air or standing on quicksand without an evidential anchor.
“The conviction was improper and is hereby quashed,” said the judge.
