Gaps in Prosecution Case Free Man Convicted of Attempted Defilement

Discrepancies in medical reports and ambiguous use of language have led to the prosecution’s case being dismissed and an attempted defilement convict released.

Given the complainant’s age, her ambiguous use of language and the lack of medical corroboration introduce significant uncertainty. The court must consider whether these gaps and contradictions can be overlooked in favor of a conviction.

Kibera High Court judge Justice Diana Kavedza noted the clinician’s findings that revealed no physical signs of trauma or penetration, which, while not definitive proof of innocence, failed to support the complainant’s account. John Njuguna a clinician at NWH produced in court medical records noting that the complainant was calm, with no physical or genital injuries, no pregnancy, and an intact hymen.

The doctor further said that digital penetration might not cause injury, supporting the charge of attempted defilement.

“These discrepancies raise critical questions about the reliability of her testimony and whether it accurately reflects the legal and factual elements required for a conviction under Section 9(1),” Justice Kavedza noted.
Moreover, the complainant’s testimony revealed inconsistencies that further weakened the prosecution’s case. During cross-examination, DW’s understanding of the term “sex” appeared vague and inconsistent, particularly given her age and maturity level.

“She claimed multiple instances of sex with the appellant, including digital penetration, yet the medical evidence provided no corroboration for these assertions,” the judge said.

She added that for a conviction under Section 9(1), the prosecution must establish beyond reasonable doubt that the appellant committed an act with the clear intent to cause penetration with a child,
“This requires a robust and consistent body of evidence, free from significant doubts or contradictions,” she added.

The prosecution’s case was that complainant BW was a 15-year-old student, who alleged a relationship with the appellant, Gradus Pondi, since December 2023.

BW claimed they had been intimate multiple times, describing visits to the appellant’s residence under the pretence of revising.

She told the court that they had sex multiple times. She stated that the appellant would undress her, touch her breasts and private parts, and attempt penetration, causing her pain, after which he would desist.
The complainant admitted lying to her mother about her whereabouts and confirmed she went to the appellant’s house willingly.

The mother of the complainant in her testimony said that, on January 13, 2024, she returned home to find her daughter absent. She claimed to be informed that her daughter was at Pondi’s house where she visited and saw no one.

She stated to learn from her daughter that Pondi inserted fingers in her private parts when she was taken to Nairobi Women’s Hospital for medical attention and medical records were produced.

Police Constable Bridgit Sifuna recorded statements from the complainant and her mother BW alleging that Pondi attempted penetration but stopped when she felt pain. No evidence suggested condom use or threats by her mother but BW’s understanding of “sex” was questioned, possibly explaining her phrasing.

In his defence, the appellant testified recounting meeting the complainant at a food vendor, lending her his phone to call her mother, who sent money via M-Pesa to pay the vendor. The appellant produced an M-Pesa statement as evidence. After paying, they parted ways.

“According to the law, the prosecution must therefore prove other ingredients of the offence of attempted defilement without penetration,” Justice Kavedza stated.

After the review of evidence produced by both sides, Justice Kavedza was to determine whether this threshold was met.

She stated that the appellant’s M-Pesa records play a pivotal role in this evaluation. These records, unchallenged by the prosecution, lend credibility to his account, suggesting that the interaction may have been limited to a transactional exchange at the vendor’s stall.

This evidence raises the possibility that the encounter was non-sexual, undermining the prosecution’s portrayal of the appellant as a predator who exploited or coerced the complainant.  The absence of any prosecution effort to discredit these records strengthened the appellant’s position, casting doubt on the complainant’s allegations.

In determination, Justice Kavedza stated that “the law demands proof beyond reasonable doubt, a standard that leaves no room for unresolved ambiguities or unaddressed inconsistencies. In light of these factors, the prosecution’s case falls short of the threshold of proof beyond reasonable doubt, and the benefit of doubt ought to be extended to the appellant.”

She found the appeal merited and quashed the conviction and set aside the sentence of ten (10) years imprisonment imposed by the trial court. “The appellant is thus set at liberty forthwith unless otherwise lawfully held,” she ruled.

The appellant was charged with the offence of attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act, with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the same Act.

He was convicted and sentenced to serve ten (10) years imprisonment on the main charge.