The High Court in Kiambu has dismissed an appeal against a 20-year-sentence meted by a Thika court on a man who defiled a mentally challenged 14-year-old girl.
John Munyao Kyalo had appealed against the conviction and sentence on grounds that the complainant was not bonded to testify against him.
He claimed he was aggrieved by the decision of the lower court to allow the victim to testify through an intermediary.
Kyalo argued further that a key witness, the mother of the minor, did not testify, elements of defilement were not proved and that the prosecution’s case was based on suspicion.
The prosecution, led by Ms Viola Muthoni, had argued that the victim was a vulnerable witness owing to her mental status.
Particulars of the case are that on January 3, 2016, at Maguguni village in Thika Central, Kiambu, he unlawfully had intercourse with a 14-year-old girl without her consent.
He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the sexual offences act No 3 of 2006.
The victim, who is mentally challenged, lived and schooled at an orphanage in Thika. During school holidays, she was at home with her mother and on the material day, the appellant, who cohabited with her mother, was entrusted to escort her to school. Along the way, he allegedly sexually molested her.
In his defence, he stated that he was requested by the complainant’s mother to take her to school, where he handed over the child to the teachers. He claimed that he was offered tea and rice and while he ate, he was arrested.
The trial court considered the evidence adduced and reached a finding that the appellant took advantage of the victim.
In her judgement, Lady Justice Lilian Mutende observed that the court did rely on a report of the status of the victim, which was authored by Dr Njeri Mungai, a consultant psychiatrist at Thika Level 5 hospital, who found her to be below average intelligence quotient (IQI).
It was on the basis of the medical report the trial court declared her vulnerable and considered having an intermediary, Linah Mwangi, a children officer, to testify on her behalf.
Justice Mutende noted that by looking at the circumstances that led to the school management to conclude that the child had been molested, Joyce Chebet, a social worker, testified that the victim cried a lot and proceeded to narrate what transpired.
Justice Mutende exonerated the failure to bond the mother to testify in the case on grounds “the appellant was alone with the complainant when she was violated sexually.
Her mother, having been absent, was not a crucial witness, therefore, the learned magistrate did not fall into error when he reached a finding that failure to testify was not fatal to the prosecutor’s case.
In assessing the sentence she averred that “it was established that the victim was a minor, looking at the circumstances in which the offence was committed, the sentence meted out was not harsh and therefore, I find the appeal lacking merit. I uphold the conviction and sentence and dismiss the appeal accordingly,” she ordered.
The verdict was made by visiting Judge Mutende during the judicial service week when courts receive additional judges to help clear the backlog. The sentence was however read by the duty of Judge Justice Christine Meoli today.