Boda boda rider to serve 25 years for sexually assaulting six-year-old girl

The Court of Appeal in Mombasa has upheld a 25-year prison sentence for the bodaboda rider who defiled a six-year-old schoolgirl on February 18, 2015, in Kilifi town.

A magistrate court found Benjamin Mwanga guilty of a lesser charge of sexual assault and handed him 25 years. He appealed, but Justice Reuben Nyakundi upheld it.

Mwanga moved to the Court of Appeal and justices Kibaya Laibuta, G. Macharia, and Weldon Korir have also upheld it, saying the 25-year jail term cannot be said to be severe and excessive.

They said the terms were fitting considering the sexual assault visited upon the six-year-old girl by a person who had been entrusted with the duty of dropping and picking her up from school.

The judges said they would not interfere with Mwanga's substituted conviction for the offence of sexual assault under section 5(1)(a)(i) as read with section 5(2) of the Sexual Offences Act.

"That being the case, we find no misdirection on the part of the trial court to warrant our interference with the exercise of the sentencing discretion," said Justice Laibuta.

The appellate court held that even though the evidence on record did not disclose penetration with a genital organ to warrant the charge of defilement, the evidence points to the fact that Mwanga had inappropriate sexual contact with the minor.

The judges said the high court was therefore correct in concluding that the evidence on record disclosed the offence of sexual assault under the Sexual Offences Act and not defilement under Section 8(3) of the Sexual Offences Act.

Justice Laibuta said that in the cases of sexual offences, it is dangerous to convict on the evidence of a woman and a girl and is no longer good law by the enactment of the proviso to section 124 of the Evidence Act.

"We consequently do not agree with the appellant’s (Mwanga's) contention that failure of the trial court to invoke Section 214 of the Criminal Procedure Code and amend the charges to suit the circumstances of the case was fatal," said Justice Laibuta.

According to the minor's father, GK, he had secured the services of Mwanga, a motorcycle rider, to pick up his daughter from school.

However, on the material day, Mwanga dropped PKL a few metres from home and hurriedly left without greeting, as was the norm.

When GK went to where his daughter was, he found her crying.

"I thought that something was amiss and asked my female worker to examine the child. It turned out that my daughter had a discharge and sand in her private parts," GK told the magistrate court.

He said that upon interrogating her, she told him that Mwanga had injured her private parts.

The minor, a class two pupil, told the court that while her mother would escort her to school in the morning, she would either take a motorbike or walk home in the evening.

She narrated that on the material day, Mwanga picked her up from school and drove her into a forest where he showed her a thorn tree called “mkurudadi” near a certain house, where he pierced her privates with the thorn from that tree and told her not to tell anyone.

She was later given money to buy a doughnut and escorted home, where she informed her father of the ordeal.

According to a medical report produced by Dr Bursa Ahmed, PKL was presented to the hospital with soiled clothes and a history of sexual assault.

Dr. Ahmed said the minor had multiple on her thigh and vulva, with no discharge, and the inner genitalia had injuries, but the hymen was intact.

The doctor further noted there was no spermatozoa seen and that the injuries were one day old.

Dr Ahmed classified the minor's injuries as harmful, placed her on post-exposure prophylaxis, and produced the PKL's Post-Rape Care and the P3 forms as exhibits.

However, Mwanga denied ever defiling the minor and stated that on the material day, he picked up the PKL together with his daughter, N., from school at 4.45 pm.

Mwanga said that he dropped his daughter at home first and then dropped the PKL at their home by 5.00 pm.

He said that Mr Kadenge, PKL's teacher, had told him that the minor had difficulties sitting in class and should pass the information to her parents.