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At just 10 years of age, NJ of Mbooni West became a victim of what would possibly haunt her for the rest of her life.
On December 10, 2010, NJ had gone to relieve herself when a man entered the sack-structured latrine, offered her Sh20, led her to a Napier grass plantation and raped her.
The incident which involved partial penetration happened at around 2 pm.
NJ said the man who was identified as Onesmus Musyoki Muema had covered her mouth during the crime but she managed to let out a faint scream.
This was heard by her mother who had just arrived home to find that her daughter was nowhere to be seen.
NJ’s mother knew something was wrong when she found her grandson, whom she had left in NJ’s care, lying on the ground near the latrine.
She then called for NJ and managed to hear her faint response prompting her to rush towards the plantation where she saw Muema running away.
The mother found her daughter crying with her underpants beside her.
She testified that she carried NJ to the house and informed her husband of the incident before they took her to Mbooni District Hospital for treatment and reported the incident to the police.
The clinical officer at Mbooni District Hospital who filled NJ’s P3 form said he based his report on treatment notes that showed that she had been examined four hours ago.
He told the court that the examination showed that the girl’s hymen had been freshly broken, concluding that penetration occurred.
The investigating officer Corporal Nasra Abdallah said she issued the P3 form and collected NJ’s soiled clothes from her mother.
Muema denied the allegations, claiming he had gone to deliver chicken to Machakos, where he had been sent by his employer.
He said he returned to Mbooni West at 4 pm and was arrested at 11 pm.
His employer however said he had sent him the previous day on December 9 adding that Muema returned the same day at 4 pm.
Muema moved to the Court of Appeal following the trial court’s decision of life imprisonment and subsequent upholding of the sentence by the High Court.
He argued that there was no proof of age of the defiled girl.
Appellate judges Agnes Kalekye Murgor, Sankale Ole Kantai and Mwaniki Gachoka however found that a health card provided by NJ’s mother showed that she was 10 years old at the time of defilement.
The clinical officer also confirmed the same.
The appellant had also argued that the High Court did not properly re-evaluate the evidence presented before the trial court, to which the judges ruled that lack of spermatozoa did not mean that rape did not happen.
The court also found that his alibi, which was provided by Muema’s employer was of no value since it was of the prior day.
The judges dismissed all grounds raised and upheld the conviction.
They also addressed the issue raised on the sentence, which Muema had complained was illegal and discriminatory.
The Court referred to section 8(2) of the Sexual Offences Act. Section 8 (2) of the Sexual Offences Act specifies that; (2)”A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”
It ruled that the sentence was lawful and legal.
“This court has no basis upon which to interfere with it. Ultimately, the appeal against the sentence is also dismissed,” the court ruled. BY THE STAR