Court in Mombasa to rule on evidence by minor who died mysteriously

A Mombasa court is expected to rule on Wednesday whether to admit statements recorded by a minor who died under mysterious circumstances before testifying in a case where three men are accused of sodomising him.

The 13-year-old boy had been set to testify against Jamal Salim Mohammed, Hassan Kadegere and Daudi Mwachiro, who allegedly sodomised him on October 11 and 14, 2015.

The physically disabled minor, who was a key witness in the case, died in mysterious circumstances on May 12, 2016.

The three men said to be matatu crew had denied committing the offence at Ganjoni in Mombasa County and are out on a Sh200,000 bond each.

The charge states that the suspects, in association, intentionally defiled the minor.

State Counsel Alice Mbae applied to have the statements of the deceased be admitted as in the case.

She said in the absence of the boy who was also the complainant in the case, his recorded statements can be used and subjected to cross-examination by the defence.

“The boy died under mysterious circumstances before he could testify against a driver and two touts who are facing charges of gang-defilement. His recorded statements are crucial to ensure fair trial and just conclusion of the case,” she said.

ADMIT STATEMENTS

The state counsel said that it was in the interest of justice to admit statements of the deceased as they contain a clear and detailed explanation of how the inhumane act on him was perpetrated by the suspects.

“Despite [his] sudden death, there is need to use his statement in the trial and it will be guided by the investigating officer in accordance with the Evidence Acts,” she added.

Presiding Magistrate Henry Nyakweba said that he would deliver a ruling after carefully analysing the authorities cited by the prosecution during the application to have the recorded statements admitted in the case.

He further faulted the prosecution for delaying the matter by failing to disclose the death of the minor despite the matter being mentioned shortly after his death.

"I never knew the complainant was dead. I learnt of his death through the media. His death was never indicated to the court despite the matter having been mentioned two months ago. In fact, I am seeing this death certificate for the first time,” he said.

“The state kept the death certificate to themselves and continued to complicate the matter more,” he added.

The suspects, however, objected to the introduction of the deceased’s statement saying it was out of order and urged the court to use statements of the other witnesses or terminate the case.

The case will be mentioned October 26, 2016.