Defile
A 34- year- old man who pleaded not guilty to committing an Indecent Act with a minor at his home, has been jailed for ten years by a Kericho Court.
Kericho Senior Resident Magistrate (SRM), Felistas Nekesa, found Patrick Ngetich guilty of committing an Indecent Act with a seven-year-old in his house, contrary to section 11 (1) of the Sexual Offences Act No 3 of 2006 on 16 January 2023, at Kopsito village in Bureti Sub-county, Kericho.
The accused was also charged with defilement contrary to section 8 (1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006, an offence he denied committing. The prosecution produced four witnesses, all who gave corroborating evidence against the accused.
The Court heard that on 16 January last year at around 8am when the complainant was taken by her mother together with her sibling to visit their grandmother. The complainant’s mother left, leaving the minor with her grandmother. The girl, after a while decided to go back to their home to see if her mother was there, but found the door to their house locked.
The girl decided to sit on a bench outside their home, as she waited for her mother to return, only to hear her name being called out aloud. The minor, before she could turn to see who was calling her, felt her right hand being held by her neighbor, the accused who pulled her into his house.
The accused removed the girl’s biker and placed her on his seat, while he undressed. He attempted to have sexual intercourse with her by touching her vagina with his penis as he held her mouth using his hand to muffle her screams. After some time the accused told her to dress up and to go back to her home.
The minor took her biker and put it on, before walking back to her grandmother’s home, but did not reveal anything until when her mother arrived to pick her up. The girl’s mother noted her daughter’s biker having mucus like substance. The complainant was taken to Kapkatet District Hospital for medical examination and the matter reported to police at Litein Police Station.
The accused was arrested on 18 January 2023, while he was at his home. A clinical officer who examined the minor, told the Court that there was partial penetration of the vagina. On examination, there were no blood stains and the girl was in fair general condition with slight pain on the elbow. The labia majora and minora were slightly swollen with a yellowish discharge seen and the hymen was intact.
The P3 tabled before the Court confirmed there was attempted defilement.
A Report from the Government Chemist Department in Kisumu dated 11 May 2023, was produced before the Court as an exhibit in the case, concluded that the DNA of the accused person was not found on the complainant’s biker. In his defense, the accused gave sworn testimony, stating that on the material day he was not present and only came back to his house at night and was arrested the next day.
In mitigation, the accused pleaded for leniency, but the Magistrate found him guilty and ordered he serves ten years in jail, minus the four months he had spent in remand custody.
“I find that penetration is in doubt, hence not conclusive whether the accused person defiled the complainant.”
“Section 9 (1) of the Sexual Offences Act provides that a person who attempts to commit an act which would cause penetration with a child, is guilty of an offence termed Attempted Defilement. Penetration may not have been proved per-se, but it is clear that the accused person came in contact with the genitalia of the complainant, meaning that the accused body was in contact with her private parts. The accused denied being at home on the material date, but did not provide proof or alibi to prove his absence, as such I find his defense to be mere denial.”
I find that the prosecution did not prove its case beyond reasonable doubt on the main count, but did prove the alternative count beyond reasonable doubt. I find the accused person guilty as charged on the alternative count and convict him accordingly said Kericho SRM Nekesa.
The convict was reminded of the right to appeal the sentence within 14 days if dissatisfied.
