3 sodomy convicts get second chance
A High in Meru has ordered for fresh hearing of a case where three inmates had been sentenced to a 15-year jail term each, for sexually molesting a 17-year-old boy inside a police cell.
Justice Alfred Mabeya said Chief Magistrate Hannah Ndung’u did not accord the three namely Geoffrey Mutethia, Dickson Murangiri and Boniface Kimathi a fair hearing.
He said it was not clear whether the court supplied the three with witness statements to help them prepare their defences, and that most of the witnesses testified in the absence of the defence lawyer.
The three had in September last year been found guilty of gang-raping the teenager while he was held at the Meru police station on March 23, 2017.
During the hearing, the court heard how the three lured the boy to the toilet and molested him in turns, threatening to kill him if he raised alarm.
On the night of the incident, the boy was being held on allegation of assault causing bodily harm and had allegedly met the three earlier on, building a rapport.
Murangiri and Kimathi are serving a 20-year jail term after being found guilty of killing one Julius Mungathia, a crime they committed in 2012 at Maibuki village in Igembe North.
Five witnesses lined up by the prosecution placed the three at the scene of the crime and proved that the boy had actually been defiled.
Dr Stephen Chege, a medic based at Meru Level Five hospital who treated the boy after the incident, told the court that the minor had a bruised neck and the anal opening produced a foul-smelling white discharge.
Aggrieved by the conviction and the sentence, they appealed claiming that they were not accorded a fair hearing, said the identification parade was faulty and that the prosecution did not prove the case beyond reasonable doubts.
The State also failed to file its submission allowing the appellants’ submissions to go unchallenged.
Justice Mabeya agreed with the appellants that during the hearing, they had asked to be supplied with witness statements but there was no record to show that they had received them.
He also noted that lawyer Jacqueline Nelima did not appear when three crucial witnesses testified, and the magistrate’s judgment did not indicate why she was absent.
“Every accused person has a right to a fair trial… In view of the foregoing, I am of the view that the trial court fell into error by proceeding as it did. The criticism against it on the ground of failure to conduct a fair hearing is not without merit. On this alone, the trial cannot stand. The conviction and sentence are set aside,” ruled Justice Mabeya and ordered for a fresh trial.