Mandera court jails man for life despite missing police file

A Mandera Court on Thursday sentenced a man to life imprisonment for defilement despite a missing police file.

Mandera Senior Resident Magistrate Mukabi Kimani expressed concern by the turn of events in the prosecution of the matter after the police file went missing.

The magistrate relied on the evidence of two witnesses to sentence Adan Ibrahim Alio in the defilement case.

 “I have had a chance to see the record of June 8, 2021 when the prosecutor raised the issue that the accused, while out on bond, had threatened the victim’s father so that he drops the case,” said Mr Kimani in his judgment.

The father to the victim, an 11-year-old girl identified as RMA in the case file, reported the matter at Mandera Police Station and was issued with OB No. 44/31/5/2021.

The prosecutor sought for cancellation of bond in view of the threats and the court for caution sake suspended the accused person’s bond pending investigation.

Defilement case

However, the complaint was withdrawn on grounds that the complainant (the victim’s father) had declined to record a statement with the police.

The court released the accused on bond and fixed the defilement case for hearing.

While issuing his judgment, the magistrate noted that the police file in the defilement case could not be found and no effort, including summons to the investigating officer and Director of Criminal Investigation (DCIO) Mandera East, bore fruit despite several adjournments.

“Taking into consideration the proviso in section 124 of the Evidence act, I find that this is one peculiar and proper case that the application of this provision will serve the ends of justice,” Mr Kimani ruled.

Section 124 provides that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim and the court shall receive the evidence of the victim and proceed to convict the accused person if only for reasons to be recorded in the proceedings, the court is satisfied that the victim is telling the truth.

“The victim, an eleven-year-old girl, impressed me and came out as being genuine with particular precision on details which cannot be due to coaching. A look at her answers on cross examination and rules out any possibility that she could have been coached or influenced to implicate the accused,” the magistrate said.

RMA told the court that she was at home when the accused went to make a food rack for her mother who was not at home.

She said she knew the accused very well since he was their neighbour. 

“The accused held my hand, smeared something on my nose and undressed me. I did not know what happened. I woke up and found my mother around,” RMA told the court during the hearing.

The girl’s mother told the court that she had contracted the accused to construct a food rack.  

 “When I returned home at about 7pm, I found my daughter lying unconscious,” she said.

The victim's mother said she feared taking her daughter to hospital due to Covid-19, but she regained consciousness on the third day.

Medical reports

 “She woke up on the third day and informed me that the accused had smeared something on her face and undressed her,” she said.

She took her to hospital and reported the matter to the police and a P3 form filled.

The P3 form or any medical reports were not produced in court during the hearing after the police file vanished.

In defence, the accused claimed that he was being fixed by the complainant and her family.

 “I take judicial notice that in this jurisdiction, there is a lot of interference to prosecution witnesses making it difficult to prosecute sexual offences to conclusion. The father of the victim had been threatened but the matter was withdrawn and it seemed the Investigating Officer was not keen to follow up this matter as he ought to,” the magistrate observed.

He said it was shocking that the complaint had been withdrawn by the police before even investigations were concluded.

 “Any reasonable person should be on high alert that the turn of events in this case has more to do with the complaint of threats to witnesses,” he said.

The magistrate added, “I have warned myself of the danger of convicting the accused on the evidence of the minor and her mother alone. I am certain the evidence meets the threshold in the proviso to section 124 of Evidence Act and the law. The evidence proves beyond doubt that the accused committed defilement on this minor."

Mr Patrick Onjoro, the prosecution officer in Mandera threatened to sue this reporter if the case and the mysterious disappearance of the police file is reported.