GARISSA, Kenya, Dec 2- Garissa High Court has upheld a ruling by Mandera Magistrate’s Court of thirty years’ imprisonment for Tariq Abduwahab in a defilement case.
Abduwahab had appealed the judgment against him by Mandera Senior Resident Magistrate Peter Wasike after finding him guilty of defiling an underage girl identified as NT.
In his appeal before Justice Ali Aroni, Abduwab argued that the trial magistrate misdirected himself in fact and law by relying solely on the evidence of the victim without corroboration.
The trial magistrate relied on the evidence of the victim as allowed by section 124 of the Evidence Act.
A provision in the Act states that “provided that where a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the victim and proceed to convict the accused person, if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
The appellant also wanted the judgment quashed on grounds that the trial court did not consider the medical report while making its decision.
“The trial magistrate misdirected himself in fact and law by convicting me without the evidence of the purported eyewitnesses and further based his decision on half-truths,” Abduwahab told the Judge.
Abduwahab filed the petition on December 15, 2020, and pegged it on at least seven grounds.
He had been charged before Mandera Senior Resident Magistrate Court, convicted, and sentenced to thirty years imprisonment for the offence of gang rape.
The particulars of the offence were that on September 25, 2019, within Mandera County in association with Ibrahim Adow Aloo, defiled NT without her consent.
During the appeal hearing, Abduwahab argued that the trial court had failed to consider inconsistencies of the complainant’s testimony especially with regard to his identification on the fateful day.
The victim had told the trial court that she positively identified Abduwahab and his co-accused since they lived in the same village and during the ordeal, the house was lit with a torch hence enabling her to see the two.
The victim in her testimony said she was employed by Abduwahab’s uncle and that on the material day, she was going to a shop when she met the accused and his accomplice.
The two men held her by force and took her to a house the two had rented and lived in.
She said she was held by Adow Aloo who covered her face and mouth as Abduwahab defiled her.
She reported the incident to Abduwahab’s uncle who, together with another lady came to the scene.
Abduwahab’s auntie gave the victim other clothes and on the next day, she was escorted to the area chief where she left the blood-stained clothes.
During the trial at the Magistrates court, the matter hit a dead-end after it emerged that the prosecution could not produce witnesses and that the victim had already been married to the assailant while he was out on bond.
Upon realizing the interference, Mandera Senior Resident Magistrate Wasike opted to rely on the evidence of the victim to sentence the accused.
The medical officer who examined the victim and the police officer who investigated the matter both vanished into the thin air, forcing the court to issue arrest warrants against them.
To date, the two are yet to be arrested and charged in a court of law.
TN told the court that Abduwahab’s auntie had forced her to sleep with him resulting in a pregnancy.
“After I was raped, his auntie came to me later and forced me to get married to him and that the matter could be resolved through Maslah, I got pregnant against my wish,” she said.
In his defence, Abduwahab denied being with the victim on the fateful day and maintained he was being fixed.
Justice Aroni in her finding said it was clear there were interferences and attempts to compromise the complainant. Due to this, the prosecution had during the trial asked for the cancellation of the bond for the accused.
“I find concurrence with the trial magistrate’s decision as he properly addressed himself on the evidence and the law and came to the right conclusion based on the evidence on record, corroboration with other evidence was not required,” Justice Aroni said.
As she concluded that the conviction was proper, she noted that sentencing is discretionary.
“The sexual offence carries a life sentence and considering the dehumanizing act committed on the complainant, the aftermath of forcefully sleeping with her a second time and trying to compromise her by way of maslah, attempting to marry her forcefully, gravitates against the appellant. He is certainly deserving of the sentence meted out, the appeal lacks merit and it is dismissed,” Justice Aroni concluded.
In Mandera, Wasike, Head Station Mandera Law Courts welcomed the High Court decision terming it a win against children’s oppression.
“We are faced with a lot of challenges when it comes to dealing with sexual offence cases or any other matter involving children at this station but the High Court decision has boosted our efforts,” he said.
The decision came as the judiciary launched National Service Month on Children matters.
Within this month, all law courts are required to fast-track all cases involving children.
The Court Users Committee (CUC) in Mandera will be carrying out sensitization exercises in several schools to inform children on their rights and the judicial processes.
Want to send us a story? Contact Shahidi News Tel: +254115512797 (Mobile & WhatsApp)
