When 10-year-old NJ went to relieve herself sometime back in December 2010, a neighbour who was well known to her broke into the makeshift pit latrine, pressed some Sh20 on her hands and dragged her out to a nearby Napier grass plantation and defiled her.
The man, Onesmus Muema, used his hand to close the mouth of NJ to stop her from screaming while his other hand did the dirt.
But the poor girl managed to shout for help and her mother responded, dashing to the plantation but only saw the man running a way, his head covered with shame and guilt.
She found her daughter lying down crying and her inner clothing besides her.
To date, Muema regrets this day, as his life and destiny are now effectively fixed to be behind bars despite his multiple attempts at freedom.
After the incident, the mother would then take her to the nearby hospital for treatment and the assessment found that NJ’s hymen had been partially broken and the penetration was only halfway achieved.
Police later took up the matter and later had Muema arrested and taken to a magistrate’s court in Makueni, where he got convicted and sent to life in jail.
His defence was to deny the incident, claiming that on the very day, he took chicken to his employer’s residence in Machakos and returned at 4pm.
Then at about 11pm, the defence said, he was arrested by the village elder and one Mary Wambua and taken to NJ’s home, where Wambua examined the child. The following day, he was taken to the police station.
Aggrieved by the conviction and sentence, Muema tried his luck at the High Court unsuccessfully. He later tried to undo the verdict at the Court of Appeal.
The three-judge bench gave their determination on August 4.
At the second appeal, his defence was that, “The elements of the offence of defilement were not established; that there was no medical assessment report to prove the age of the child.”
He also argued that “there were no injuries on her genitalia, including bruises or lacerations, and further, that there was no male discharge such as semen or spermatozoa was present to prove that there was penetration”.
He also claimed that he was not properly identified. It was further submitted that crucial witnesses were not called and that his alibi defence was unjustifiably disregarded.
That furthermore, the evidence of the clinical officer [in the case] was not properly received by the trial court, as he was not the maker of the treatment card and therefore ought not to have produced it.
“On the sentence, [he] submitted that it was discriminatory since it gives differential treatment to accused persons convicted under the same provisions. He prayed that the sentence be reduced,” the judgement reads.
But the state submitted that the offence of defilement was proved to the required standard; that the complainant’s age was established through her evidence and that of her mother; that penetration was established and that the appellant was caught red-handed and was properly identified.
Counsel submitted that the clinical officer proved that there was penetration and that the evidence pointed to the appellant as the perpetrator.
Finally, the court agreed with the state that the evidence against him met the threshold and that the sentence was also lawful and he deserved no leniency.