- The accused was also charged with defilement an offence he denied committing.
- The prosecution produced four witnesses, all who gave corroborating evidence against the accused.
Image: FILE
A 34- year- old man who pleaded not guilty to committing an indecent act with a minor at his home, has been jailed for 10 years by a Kericho court.
Kericho Senior resident magistrate Felistas Nekesa, found P N guilty of committing an indecent act with a seven-year-old in his house on January 16, 2023, at Kopsito village in Bureti, Kericho county.
The accused was also charged with defilement an offence he denied committing.
The prosecution produced four witnesses, all who gave corroborating evidence against the accused.
The court heard that on January 16 last year, at around 8 am, the complainant and her sibling were taken by their mother to visit their grandmother. The complainant’s then 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 locked.
The girl sat on a bench outside their home as she waited for her mother to return, only to hear her name being called out.
But before she could turn to see who was calling her, the minor felt her right hand being held by a neighbour—the accused—who pulled her into his house.
The accused undressed and attempted to have sexual intercourse with her as he covered her mouth with his hand to muffle her screams.
After some time, the accused told her to dress up and go back to her home.
The minor dressed and walked back to her grandmother’s home but did not reveal anything until her mother arrived to pick her up.
The complainant's mother noticed that her daughter’s biker had mucus-like substance.
The complainant was taken to Kapkatet District Hospital for medical examination and the matter reported at Litein police station.
The accused was arrested on January 18, 2023, 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 P3 tabled before the court confirmed there was attempted defilement.
A report from the Government Chemist in Kisumu dated May 11, 2023, which was produced before court as an exhibit, concluded that the DNA of the accused was not found on the complainant’s biker.
In his defense, the accused gave sworn testimony saying 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 10 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," the magistrate said.
"Penetration may not have been proved per-se, but it is clear that the accused 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 guilty as charged on the alternative count and convict him accordingly," said the magistrate.
The convict can appeal the sentence within 14 days if dissatisfied.