Teen’s testimony jails stepfather for life over defilement

The Court of Appeal sitting in Nakuru has upheld a life sentence against a man convicted of repeatedly defiling his 15-year-old stepdaughter.

The appellate judges dismissed the appeal filed by the convict, identified as JAA, stating that the evidence presented during trial was overwhelming and the conviction was properly secured.

JAA was found guilty of incest and sentenced to life imprisonment by the Naivasha Magistrate’s Court in 2015. Today’s ruling means he will continue serving the sentence as earlier directed.

At the heart of the case was the disturbing testimony of the minor, who recounted years of abuse at the hands of a man she had grown up calling “father.”

"I was in the kitchen when he came home drunk," the girl told the trial court. "He called me into the house, took me to his bedroom, removed my panties, and defiled me."

The teenager’s testimony was further supported by her mother, who told the court she walked in on the horrific scene that July evening in 2013.

"I had come home late because he failed to pick me up with his bicycle,"  the mother told the court. "Our house was partitioned with a curtain. I found him with my daughter in my bed."

She explained how her daughter, feeling ashamed, picked up her underwear from the floor and walked to the kitchen.

It was there, through tears and trembling words, that the young girl shared what had happened to her.

"She told me he found her in the kitchen and called her into the main house," the mother said. "He took her by force and hurt her."

According to her testimony, this was not the first time the girl had been mistreated. The girl told the court that the first incident happened in February of the same year, while her mother was away in Nairobi.

Although she told her mother, no action was taken, and she was never taken to a hospital. The mother admitted she remembered an earlier occasion when her daughter called to say the man "wanted to do ‘tabia mbaya’ (bad things)" to her.

When confronted, JAA denied the allegations. Medical evidence from Naivasha District Hospital supported the girl’s claims.

A clinical officer testified that the victim arrived at the hospital with her visibly distressed mother. Upon examination, the girl was found to have a torn hymen, bruises on her labia majora, and cuts on her vagina.

"No discharge, spermatozoa, or blood stains were detected," the officer told the court. "However, pus cells were present in her urine, and unfortunately, she tested positive for HIV."

The court also heard that both the accused and his wife were on HIV treatment, raising concerns that he may have knowingly infected the child.

A police officer from Naivasha Police Station confirmed receiving the report on July 19, 2013. JAA was arrested three days after the incident.

In his defence, he denied the allegations, claiming he was at work on the day in question and had been in contact with his wife because his bicycle had broken down.

He accused his wife of withholding her HIV status before their marriage and said he only learned about the child’s HIV status after taking her to the hospital due to her frequent illness.

Despite his claims, both the trial court and the High Court found his story lacking credibility. The trial court convicted him and sentenced him to the mandatory life imprisonment under Section 20(1) of the Sexual Offences Act.

On appeal, JAA argued that the charge sheet was defective, that his rights were violated by not being informed of his right to legal representation, and that the mandatory sentence denied him a chance to seek mitigation.

These arguments were dismissed. He then took his case to the Court of Appeal, raising similar points.

He disputed the charge sheet’s claim that he was the biological father of the child, argued that the sentence was unconstitutional, and claimed he was intoxicated during the incident, which should have been considered a mitigating factor.

The Court of Appeal was unconvinced.

The judgment stated, "There is uncontroverted evidence that the appellant (JAA) was married to the complainant’s mother and had accepted her as his daughter. The presumption created by law that he knew of the relationship was never rebutted."

Justices Mohamed Warsame, John Mativo, and Mwaniki Gachoka agreed that JAA was caught in the act and that the girl’s testimony was consistent, detailed, and credible.

Her evidence was supported by her mother and medical reports.

"Penetration was proved beyond a reasonable doubt,” the judgment noted.

"The evidence of the daughter and mother was never shaken during cross-examination. This is a case where the appellant was caught in flagrante delicto."

Regarding the claim of intoxication, the judges stated, "Even if he was drunk, he never raised intoxication as a defence during trial. Moreover, drunkenness does not automatically absolve one from criminal responsibility."

On the matter of legal representation, the court acknowledged the record did not show whether JAA was informed of this right.

However, they noted that he actively participated in the trial, cross-examined witnesses, and never raised this issue earlier.

Therefore, the court ruled that he could not raise the issue at this late stage. On his claim that the life sentence was excessive, the court held that the sentence was lawful and proportionate to the gravity of the offence.