The High Court has quashed the conviction of businessman Jon Cardon Wagner and his co-accused Judy Nyamweru and Fedha Nyaguthie.
Justice Mohamed Warsame ruled that the three were wrongfully convicted by the trial magistrate without proper scrutiny of the evidence provided and that the conviction was flawed with many discrepancies.
The judge said it was not possible to determine if Wagner actually committed the alleged defilement of minors or whether Nyamweru and Nyaguthie took the complainants to Wagner’s residence in Lavington.
“The trial did not consider legal issues raised by the appellants. I have no doubt that the investigations were carried in a hurried manner without impartiality, fairness or objectivity,” ruled Justice Warsame.
He upheld Mr Wagner’s 50 grounds of appeal that the trial magistrate totally ignored his defence and violated his fundamental rights.
He faulted the magistrate for amending the charge sheet without giving the accused a chance to plead to the charges, and to their lawyers a chance to cross-examine the witnesses again.
“In my understanding, a charge sheet can only be amended if the prosecution has closed the case and opened another. The trial court seemed to be in a hurry to convict the appellants,” said Justice Warsame.
Even after amending the charges, Justice Warsame agreed with the defence lawyers that the appellants were not given adequate time to respond or defend themselves against the new charges.
“This was injustice and denial of the appellants’ rights. The prosecution acted in a manner suggesting they were under third party instructions,” ruled Justice Warsame.
He said that it became clear during cross examination at the hearings of the appeal that none of the 25 witnesses connected the appellants to the charges brought against them by the prosecution.
The judge also pointed out that the trial court went ahead and convicted the three without scientific evidence showing the ages of the three minors Wagner was accused of defiling at his Lavington home.
Justice Warsame ruled that the judgment of the trial court could not be sustained as the doctors assessment on the minors showed that there were no physical injuries to prove that they were actually defiled.
“There was no medical justification to prove that there was defilement as the doctors’ reports consistently showed that the injuries sustained by the minors could have been as a result of any other thing,” said Justice Warsame.
On evidence linking Nyamweru and Nyaguthie to the charges, Justice Warsame ruled that the trial court failed to prove that they were actually the two ladies who took the minors to Wagner’s residence.
He added that there was conflicting information on the charge sheet, one reading that they took the three minors to Lavington while the other indicating that they took them to Westlands.
Mr Wagner, a former Java Coffee House boss, was charged in June 2008 with three counts of defiling three under-age girls at his Lavington home and sentenced to 15 years in prison in September 2009 by Nairobi principal magistrate Teresia Ngugi.
His co-accused Judy Nyamweru and Fedha Nyaguthie were charged of exposing the under-age girls to prostitution and were each handed a 10 year jail term.
They were found guilty of taking the girls to Wagner’s house after which the businessman was allegedly sedating the minors before defiling them.
Justice Warsame also ordered that the Sh1 million Mr Wagner had deposited as bond pending determination of his appeal be refunded, as well as his passport.