DPP faulted for bungling case of man accused of raping mentally challenged woman

The High Court in Malindi has faulted the Office of the Director of Public Prosecution (ODPP) for drafting defective charges leading to the acquittal of a man charged with raping a mentally ill woman (S.L.).

Justice Francis Kyambia said that the ODPP was not keen on drafting the said charges of rape and ended up charging him under the wrong statute and charging him under the wrong names.

Justice Kyambia also faulted the ODPP and lower court for failing to ascertain the vulnerability of the rape victim before appointing an intermediary (her mother) to testify on her behalf.

Jabil Chai was slapped with 20 years' imprisonment by the lower court for raping S.L. on January 28, 2022, at Kilifi County, contrary to Section 7 of the Sexual Offences Act No. 3 of 2006.

He also faced an alternative charge of committing an indecent act with S.L., contrary to Section 11(1) of the Sexual Offences Act.

However, upon appeal, Justice Kyambia acquitted him after establishing that Chai was charged under the wrong statute and a defective charge that portrayed the mentally ill woman as a spectator rather than a victim.

The judge said that Chai should have been charged under Section 146 of the Penal Code touching on rape of a person with disabilities instead of Section 7 of the Sexual Offences Act (SOA) No. 3 of 2006.

The judge noted that the prosecution failed to prove that under Section 146, the act of sexual assault is committed within the view of a family member, a child or a person with a mental disability as opposed to the distinct offence of rape stipulated under Section 3(1) of the Sexual Offences Act.

“In section 7 of the SOA offence, the person with a mental disability is the spectator, while under section 146 of the Penal Code offence, the person with a mental disability, termed 'idiot' or 'imbecile', is the victim,” said Justice Kyambia.

The judge said that failure by the trial court to direct an amendment under Section 214 of the Criminal Procedure Code to reflect the correct offence led to the conviction of Chai on an offence that existed under a different statute.

“In the premises the charge in the main charge was defective. This was a fatal defect, and it occasioned a failure of justice,” said Justice Kyambia.

Further, the judge said that the alternative charge was equally defective, as it referred to the accused as Samuel Chome Ngumbao, who is a different person from the appellant.

“What this portends is that the prosecution and the investigating officer did not have diligence in framing the charges. Therefore, the appellant was charged with an offence that falls under a different statute, the Penal Code, instead of the Sexual Offences Act (emphasise mine),” said Justice Kyambia.

The judge noted that the ODPP did not submit on this issue of a wrong statute save for arguing that the charge was not defective.

In his appeal, Chail said that the trial court failed to adhere to the proper procedure in declaring the S.L. a vulnerable person and appointing PW2 as intermediary.

Justice Kyambia said that the declaration of S.L. as vulnerable and appointing her mother, PW2, as an intermediary did not meet the legal threshold.

The judge said that from sections 31(2) and 32, it is the duty of the prosecution to ascertain the vulnerability of the witness and to apply to the court to make that declaration before appointing an intermediary.

“In the premises and in my view there was a miscarriage of justice in the manner in which the evidence of the complainant (S.L.) was taken by the trial court. It is also not even clear from the record whether the victim appeared in court,” said Justice Kyambia.

“In the premises, the conviction and sentence were unsafe in the circumstances, and the same is quashed, and the appellant is acquitted,” said the judge.