Nyeri court frees man jailed for 20 years for defiling employer’s daughter after he appeals

A man who had been jailed for 20 years for defiling a 13-year-old girl has been acquitted by the Nyeri High Court after an appeal.

John Gitau Ndirangu was jailed by Principal Magistrate Phillip Mutua on October 3, 2014 after he was found guilty of defiling the minor on May 11, 2014 in Karunaini Village in Tetu, Nyeri County.

The father of one was an employee of the minor’s parents and he shared the same compound with them.

However, Justice Jairus Ngaah said during trial, the evidence adduced in court did not prove beyond reasonable doubt that it was Mr Ndirangu who defiled the minor.

He filed the appeal on January 14, 2015.

The judge observed that the age of the complainant was not given in court despite an order that she be assessed.

“Ascertainment of age of a victim of a sexual offence is important. The prosecutor applied to have the age of the complainant assessed. The court allowed the application but there is no evidence that this order was complied with. Trial was concluded without ascertainment of the complainant’s age,” said the judge.

MINOR TESTIFIED

The minor testified that she was aged 13 and that on the material day at about 3pm she went to Mr Ndirangu’s house for his cell phone.

She said the man grabbed her and defiled her, threatening to kill her if she raised the alarm.

According to the complainant, nobody else was at home when the incident happened.

She, however, informed her grandmother who in turn reported it to her parents and police who arrested the appellant.

The grandmother did not testify in court.

“Failure to call her dented the prosecution’s case and at the very least created doubt in the complainant’s testimony that she informed her grandmother of the sexual assault,” observed the judge.

Her mother testified that she left the minor in the company of her father and the appellant.

The judge noted that it did not come out clearly from the prosecution’s evidence where the complainant’s father was at the time she was sexually assaulted.

DEFENCE EVIDENCE REJECTED

Mr Ndirangu appealed the sentence on four grounds saying the magistrate rejected his defence.

“The learned magistrate erred in law and in fact in basing conviction on the manner by which I was arrested yet those who were alleged to have arrested me were not called as witnesses,” Mr Ndirangu argued.

The state opposed the appeal maintaining that Mr Ndirangu was properly convicted.

This omission of age, according to prosecution, was not fatal to the case because it can be remitted back to the magistrates’ court for purposes of assessment of the age of the complainant.

Mr Ndirangu denied having committed the offence and asserted that he was framed by his employers.