A Makueni High Court on Friday, November 6 upheld a sentence against a miller who was jailed for 15 years by a trial court after he was found guilty of defilement.
His defence which was that he was unable to rise to the accession did not hold water just like his ground of appeal.
Mutungi Nzioki Ndaisi was accused of forcing his way with a minor, then 15, on diverse dates between the month of March 2020 and June 2020 at a village in Sultan Hamud Sub-Location, Makueni County. He was also charged with touching her inappropriately.
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Nzioki denied the charges and the case proceeded to trial which saw him convicted and sentenced to 15 years imprisonment.
He was dissatisfied with the conviction and sentence, and he appealed citing that the trial magistrate erred by holding that the case for the prosecution was proved to the required standard, whereas on the basis of record the burden of proof was not discharged and indeed left reasonable doubts that ought to have been resolved in appellant’s favour.
Secondly, he stated that the court relied wholly on prosecution witnesses’ testimony which was fabricated and riddled with lies that could not be corroborated.
Thirdly, he lamented that the virtual trial proceedings were marred with plenty of hitches which led to misinterpretation of his intended questions to the accused but the court records showed that Nzioki did not complain about translation and so it was dismissed.
The appeal proceeded and the evidence on record was re-evaluated and the victim was recalled to testify. She stated that in March 2020 while herding cattle with her sister, Nzioki approached her, gave her bananas and requested her for sex which she did not decline.
They two then engaged in sex and three months later, the same thing also happened.
The minor further stated that she was also seeing other men. She later became pregnant and she was taken to the police station to report the matter
Other prosecution witnesses including a medic, told the court that the minor had confided in him revealing that she had sexual intercourse with several men of about five but pointed out at Nzioki as her regular sexual partner.
The area chief testified that she was informed the victim was associating with several men
When Nzioki was put on his defence, he tendered unsworn testimony saying that he was arrested on August 8 2020 while leaving his posho mill.
He said that the case against him was fabricated and that he found the Assistant Chief with the complainant twice.
Nzioki defended himself that he was unable to have intercourse since he was an old man who was sick stating it as the main reason why his wife left him.
The court finally found that the complainant was a believable witness. The two knew each other before. There was no existing grudge and the incidences occurred in broad daylight and were repeated.
While delivering the sentence, Makueni Judge George Dulu noted, “The fact that the victim admitted to having seen many men could not exonerate Nzioki and in my view, with the evidence on record, the prosecution proved beyond any reasonable doubt that Nzioki was the culprit, and his appeal on conviction failed.
The sentence of 15 years imprisonment is within the law, as the minimum sentence. I will thus uphold the sentence. Consequently, I find no merits in the appeal. I thus dismiss the appeal and uphold both the conviction and sentence of the trial court.” ruled the judge
