Mongrel
Elder Lister
Can only happen in a shithole like Kenya, complainant anafungia ndio ushahidi wake uwe ule korti inataka ili ifunge mtu.
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Muranga
How court, prosecution errors freed defilement suspect from 20-year sentence
Wednesday, April 24, 2024
Justice Nixon Sifuna allowed an appeal by Wilson Githaiga Muriithi, who was sentenced to 20 years in prison on August 16, 2021. Justice Sifuna ruled that it was improper for a court to remand an applicant in custody in order to compel him to testify in a version preferred by the court and the prosecution.
Photo credit: File
By Lucas Barasa
The High Court has overturned the 20-year jail sentence of a Murang'a man for defiling a 13-year-old girl.
Justice Nixon Sifuna allowed an appeal by Wilson Githaiga Muriithi, who was sentenced to 20 years in prison on August 16, 2021.
Justice Sifuna ruled that it was improper for a court to remand an applicant in custody in order to compel her to testify in a version preferred by the court and the prosecution.
RELATED
In an appeal filed on November 13, 2018, Muriithi sought to quash the conviction and set aside the sentence by the Kangema Principal Magistrate’s Court.
Read: Deaf people suffer in 'silence' as SGBV persists
He averred that he was convicted despite the evidence on the record being insufficient and that the prosecution evidence had inconsistencies and contradictions.
He also said the case against him was not proven to the required standard “as there was reasonable doubt.”
Allowing Muriithi’s appeal, Justice Sifuna added: “Given the seriousness of the offence and stem sentence prescribed for it, I order the case be retried. The same to be retried before a magistrate other than Hon. I. Gichobi the learned trial magistrate that presided over the case in the court below.”
“I further order that the retrial be proceeded with on a priority basis, and be concluded within 12 months from the date of this judgment.”
Justice Sifuna ordered that in the retrial, the complainant should be allowed to testify freely and truthfully without interference, intimidation or arm-twisting.
“Should the need arise for counselling or psycho-social support, she may be referred to a counsellor or psychologist.”
Muriithi was charged with defiling a 13-year-old girl on diverse dates in October 2020 in Mathioya, Murang’a County.
Alternative charge
He also faced an alternative charge of committing an indecent act with the said child.
During the hearing, the complainant, who was in the middle of her testimony, was stood down and sent to police detention "for further investigations."
She was weeks later brought back to the witness box to resume her testimony in a version acceptable to the trial court and the prosecutor, Mr Justice Sifuna noted.
The complainant denied knowing the accused and stated that the person she was in a love relationship with was not in the dock in her initial testimony.
Also read: How court fixed dilemma of 11-year-old defilement victim
During the mention of the case, the prosecutor declared the complainant a hostile witness and asked the court to continue detaining her until she became willing and ready to testify in a way acceptable to the court and prosecution.
“This was not only strange and unconventional but also inappropriate in a civilised judicial system such as Kenya’s. It was extra-judicial and cruel to the little girl and should never have happened,” Justice Sifuna said.
“Sending to custody a vulnerable juvenile victim of sexual assault for the purpose of extracting from her the court’s or the prosecutor’s preferred testimony is in itself inappropriate and improper, a violation of her rights,” the judge noted.
“It cannot also be said that a court’s detaining a 13-year old girl in police custody, to force her to testify in a preferred version, is to act in the child’s best interest. This was clearly a failure of the judicial process and a grave miscarriage of justice. It is also not what was intended by the drafters of the Sexual Offences Act.”
Justice Sifuna decried the prevalence of the habit of detention of complainants in subordinate courts in sexual offences involving minors and teenagers, especially defilement, hoping that the move would punish them into changing their testimony and testifying in a pre-determined version acceptable to or preferred by the trial court and the prosecutor.
Arm-twisting
“That arm-twisting is wrong and an affront to the rights of the victim as well as the accused person’s right to a fair trial. It is high time courts in this country disabused themselves of this habit.”
Justice Sifuna said the detention forced the complainant to change her testimony and that “after testifying in the new version, the court released her from custody.”
The judge said the incarceration denied the girl precious school time.
The unnecessary confinement was an exacerbation and compounding of victimology, adding that the court should have referred the girl to a counsellor for counselling or to a psychologist for psycho-social support, “or even merely assured her that she has the protection of the law hence should testify truthfully, frankly and without fear or favour.”
Justice Sifuna said he could not rule out interference with the witness and bullying, blackmailing and victimisation.
He said the burden of proof of defilement lies on the prosecution and not the accused and that “the charge of defilement like all other criminal charges, has to be proved to a standard that is higher than the civil cases balance of probability.”
“And where there is reasonable doubt, the benefit of that doubt will be given to the accused and not the prosecution, despite the gravity of the seriousness of the offence. The need for this higher standard is even higher in offences carrying heavier sentences, such as defilement as in this case, which carry heavier sentences.”
Ok
We use cookies to enhance your experience. By continuing to visit this site you agree to our use of cookies. Learn More
Muranga
How court, prosecution errors freed defilement suspect from 20-year sentence
Wednesday, April 24, 2024
Justice Nixon Sifuna allowed an appeal by Wilson Githaiga Muriithi, who was sentenced to 20 years in prison on August 16, 2021. Justice Sifuna ruled that it was improper for a court to remand an applicant in custody in order to compel him to testify in a version preferred by the court and the prosecution.
Photo credit: File
By Lucas Barasa
The High Court has overturned the 20-year jail sentence of a Murang'a man for defiling a 13-year-old girl.
Justice Nixon Sifuna allowed an appeal by Wilson Githaiga Muriithi, who was sentenced to 20 years in prison on August 16, 2021.
Justice Sifuna ruled that it was improper for a court to remand an applicant in custody in order to compel her to testify in a version preferred by the court and the prosecution.
RELATED
- How court fixed dilemma of 11-year-old defilement victim
DN2 6 hours ago
- Family rejects church elder's Sh100,000 to cover up defilement
Kajiado Apr 14
In an appeal filed on November 13, 2018, Muriithi sought to quash the conviction and set aside the sentence by the Kangema Principal Magistrate’s Court.
Read: Deaf people suffer in 'silence' as SGBV persists
He averred that he was convicted despite the evidence on the record being insufficient and that the prosecution evidence had inconsistencies and contradictions.
He also said the case against him was not proven to the required standard “as there was reasonable doubt.”
Allowing Muriithi’s appeal, Justice Sifuna added: “Given the seriousness of the offence and stem sentence prescribed for it, I order the case be retried. The same to be retried before a magistrate other than Hon. I. Gichobi the learned trial magistrate that presided over the case in the court below.”
“I further order that the retrial be proceeded with on a priority basis, and be concluded within 12 months from the date of this judgment.”
Justice Sifuna ordered that in the retrial, the complainant should be allowed to testify freely and truthfully without interference, intimidation or arm-twisting.
“Should the need arise for counselling or psycho-social support, she may be referred to a counsellor or psychologist.”
Muriithi was charged with defiling a 13-year-old girl on diverse dates in October 2020 in Mathioya, Murang’a County.
Alternative charge
He also faced an alternative charge of committing an indecent act with the said child.
During the hearing, the complainant, who was in the middle of her testimony, was stood down and sent to police detention "for further investigations."
She was weeks later brought back to the witness box to resume her testimony in a version acceptable to the trial court and the prosecutor, Mr Justice Sifuna noted.
The complainant denied knowing the accused and stated that the person she was in a love relationship with was not in the dock in her initial testimony.
Also read: How court fixed dilemma of 11-year-old defilement victim
During the mention of the case, the prosecutor declared the complainant a hostile witness and asked the court to continue detaining her until she became willing and ready to testify in a way acceptable to the court and prosecution.
“This was not only strange and unconventional but also inappropriate in a civilised judicial system such as Kenya’s. It was extra-judicial and cruel to the little girl and should never have happened,” Justice Sifuna said.
“Sending to custody a vulnerable juvenile victim of sexual assault for the purpose of extracting from her the court’s or the prosecutor’s preferred testimony is in itself inappropriate and improper, a violation of her rights,” the judge noted.
“It cannot also be said that a court’s detaining a 13-year old girl in police custody, to force her to testify in a preferred version, is to act in the child’s best interest. This was clearly a failure of the judicial process and a grave miscarriage of justice. It is also not what was intended by the drafters of the Sexual Offences Act.”
Justice Sifuna decried the prevalence of the habit of detention of complainants in subordinate courts in sexual offences involving minors and teenagers, especially defilement, hoping that the move would punish them into changing their testimony and testifying in a pre-determined version acceptable to or preferred by the trial court and the prosecutor.
Arm-twisting
“That arm-twisting is wrong and an affront to the rights of the victim as well as the accused person’s right to a fair trial. It is high time courts in this country disabused themselves of this habit.”
Justice Sifuna said the detention forced the complainant to change her testimony and that “after testifying in the new version, the court released her from custody.”
The judge said the incarceration denied the girl precious school time.
The unnecessary confinement was an exacerbation and compounding of victimology, adding that the court should have referred the girl to a counsellor for counselling or to a psychologist for psycho-social support, “or even merely assured her that she has the protection of the law hence should testify truthfully, frankly and without fear or favour.”
Justice Sifuna said he could not rule out interference with the witness and bullying, blackmailing and victimisation.
He said the burden of proof of defilement lies on the prosecution and not the accused and that “the charge of defilement like all other criminal charges, has to be proved to a standard that is higher than the civil cases balance of probability.”
“And where there is reasonable doubt, the benefit of that doubt will be given to the accused and not the prosecution, despite the gravity of the seriousness of the offence. The need for this higher standard is even higher in offences carrying heavier sentences, such as defilement as in this case, which carry heavier sentences.”
