MANDERA, Kenya, Nov, 12 – On August 18, 2021, the Office of the Public Prosecution (ODPP) Mandera, informed a trial court that a police file in a defilement case had gone missing.
Peter Wasike, the trial magistrate then asked the prosecution led by both Patrick Onjoro and Charles Mogaka to produce the file or ask the police to come and explain to the court the circumstances under which the file went missing.
On the same day at noon, the prosecution informed the trial court that the missing file had not been found and that there was no proper handing over of the same between the police and the ODPP.
Wasike granted the prosecution an adjournment and summoned the Investigating Officer (I.O) and the Mandera East DCIO to avail the witnesses and the police file to the court.
By the time the file went missing, only two witnesses (the complainant and her mother) had tendered their evidence in the case in which Adan Ibrahim Alio was charged on May 27, 2021, with defilement of a girl aged 11 years and identified as RMA.
On September 1, the prosecution asked the court to adjourn the matter again on grounds that the DCIO was still searching for the missing file.
This is when the trial magistrate noted that the DCIO was not taking matters seriously and that he was not keen to avail the police file in court.
“Since August 18, to August 30, we have been adjourning this case. This court will not tolerate the same,” Wasike informed the prosecution.
On September 1, the prosecution informed the court that the DCIO was attending a security meeting at his office and could not come to court.
“We have checked everywhere including the cabinets at the DCIO and at my office, we have been unable to find the police file and therefore I close the prosecution case,” Patrick Onjoro, the prosecution counsel informed the court.
The police file lists the number of witnesses in a criminal case and other documents like the witness statements, medical reports including the P3 forms and the inventories form part of this file.
Its disappearance means trajectory loss in any court proceedings and in many cases, it has been cited as means to defeat justice by the custodians of the file.
Defence hearing was fixed for September 13, and the accused maintained that he was being fixed by the complainant and her family.
At the initial stages of the case hearing, the prosecution had reported to court alleged interference of witnesses by the accused.
A father to the complainant had reported being threatened by the accused who had been freed on bond.
Later, the same prosecution reported back that the complainant (the father) had dropped the complaint against the accused.
Faced with the situation, the trial magistrate while making his final decision borrowed from the Court of Appeal ruling in Arthur Mshila Manga v Republic in 2016.
The Court of Appeal noted, “the medical evidence having failed to confirm that JM was defiled, the only evidence was that of JM, the complainant. It is trite that under the proviso to section 124 of Evidence act, the trial court can convict on the evidence of the victim of the sexual offence. However, before the court can do so, it first must believe or be satisfied that the victim is telling the truth and secondly it must record the reasons for such belief.”
“Taking into consideration the proviso in section 124 of the Evidence act. I find that this is one peculiar and proper case that the application of this proviso will serve the ends of justice,” Wasike, the presiding magistrate said after the police file went missing.
Section 124 of the Evidence Act makes provision for corroboration of the evidence of children
The section provides that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence and the court shall receive the evidence of the victim and proceed to convict the accused person if only for reasons to be recorded in the proceedings, the court is satisfied that the victim is telling the truth.
“The victim, an eleven-year-old girl, impressed me and came out as being genuine with particular precision on details which cannot be due to coaching. A look at her answers on cross-examination and rules out any possibility that she could have been coached or influenced to implicate the accused,” the magistrate said.
RMA told the court that she was at home when the accused came to make a food rack for her mother who was not at home.
She said she knew the accused very well since he was their neighbour and a carpenter.
She was at home with her two young siblings and her aged grandmother.
“The accused called me and asked me to bring him a shirt that was outside. He held my hand and smeared something on my nose and undressed me. I did not know what happened. I woke up and found my mother around,” RMA told the court during the hearing.
After failing to find the police file, the magistrate relied on the evidence of two witnesses to sentence Adan Ibrahim Alio in a defilement case to life imprisonment.
In his judgement, the magistrate reported that he had really been troubled by the turn of events in the prosecution of the matter, more so when the police file was reported missing.
Immediately the case was marked closed, the police file emerged and Mandera County Criminal Investigation boss Bernadict Kigen said it was the prosecution that brought the file to the police.
“Our file dispatch records have shown the file reported missing was given to the DPP but was never returned to us. I know we are dealing with different kinds of people and any case with a lot of interest in this station has challenges in dealing with it,” Kigen said, promising to investigate circumstances under which the file went missing.
In his ruling, the trial magistrate raised alarm over interference to prosecution witnesses in sexual offences in Mandera County.
“I take judicial notice that in this jurisdiction there is a lot of interference to prosecution witnesses making it difficult to prosecute sexual offences to the conclusion. The father of the victim had been threatened but the matter was withdrawn and it seemed the Investigating Officer was not keen to follow up this matter as ought to,” Wasike, the magistrate observed.
He said it was shocking that the complaint against the accused by a witness had been withdrawn by the police before even investigations were concluded.
“Any reasonable person should be on high alert that the turn of events, in this case, has more to do with the complaint of threats to witnesses,” he said.
“I have warned myself of the danger of convicting the accused on the evidence of the minor and her mother alone. I am certain the evidence meets the threshold in the proviso to section 124 of the Evidence Act and the law. The evidence proves beyond doubt that the accused committed defilement on this minor,” he concluded.
In January, Wasike declined to withdraw another defilement case after the prosecution led by Patrick Onjoro applied for the same on grounds that the accused and the victim were happily married after the ordeal.
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