Child rapist jailed for life set free over missing court file

A 52-year-old man who defiled and made his niece pregnant has walked to freedom after the Judiciary misplaced a record of the court proceedings.

NKK, who has been behind bars for close to 11 years, secured his freedom after numerous attempts to trace the court and police files failed.

“In my view, there is no likelihood that trial court’s proceedings will ever be found,” said Justice Eric Ogola.

The missing court proceedings meant that the man could not appeal against a life sentence that was imposed on him in 2012 by a Magistrate’s Court in Kwale.

The judge noted that the convict has the right to appeal, but he could not do so due to the court’s mistake. 

“I am satisfied that this is a proper case in which to exercise the discretion of this court to release the appellant. Accordingly, he is hereby set free and released from prison,” said Justice Ogola.

NKK was tried and convicted for incest. The trial magistrate found him guilty of the offence and sentenced him to life imprisonment.

Aggrieved by the verdict, the convict challenged it through an appeal to the High Court.

He told the court that he was convicted for defiling a 15-year-old girl, who also conceived in the process. He, however, indicated that there was no DNA test carried out to prove that the baby was his.

He challenged the verdict based on this argument and urged the court to acquit him.

“The child is not mine,” he said, adding that the victim is now married, has turned 24, and is a mother.

According to the court record, NKK was 41 in 2012, when he was jailed for life.

He expressed his dissatisfaction with the verdict by faulting the magistrate for finding him guilty yet no evidence was produced linking him to the offence.

However, the appeal could not proceed to its logical conclusion because the record of the appeal could not be traced.

The Office of the Director of Public Prosecutions, through Mr David Fedha, said it did not have the records.

“It is the court that is the custodian of all the documents. The Deputy Registrar (DR) should be given more time to look for the record,” Mr Fedha said.

The court then directed the registrar to look for the records and file an affidavit in the event the documents cannot be found.

What followed was several mentions of the case to confirm the availability of the records, to no avail.

After more than 10 mentions, it emerged that neither the lower court file, proceedings, record of appeal, and the police file could be traced.

In July last year, Justice Ogola noted that the proceedings, in the case could not be traced and directed the deputy registrar to swear an affidavit that the documents cannot be traced for the court to make appropriate orders. 

“The police have undertaken to look for police file from where we may be able to get a copy of the judgment of the trial court and other proceedings,” Mr Fedha said, and asked the court to grant him 30 days to look for the police file.

After one month, Mr Fedha returned to the court, saying that the DPP was unable to trace all the documents related to the case, which has been pending before the court since 2018.

Police records filed by the prosecution indicate that the convict was arrested on March 27, 2011, tried, convicted, and sentenced to life imprisonment on February 28, 2012.
This means that he has been behind bars for nearly 11 years.

“Accordingly, it’s my finding that the appellant has a right to a fair trial, which includes the right to appeal. To hold him hostage due to mistakes that are not of his making would amount to a violation of his rights under the Constitution,” said Justice Ogola, while setting the man free.

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