In October 2017, Thomas Kivoi Nzau had been convicted of defiling a 14 year-old schoolgirl contrary to Section 8(3) as read with Section 8(1) of the Sexual Offences Act.
Nevertheless, the convict has successfully appealed against a trial court judgment that had found him guilty of defilement. The judgment entered by Justice George Odunga of the Machakos High Court reduced his prison term from 20 to 15 years albeit maintaining that he was still guilty as in accordance to the evidence procured before the court.
Justice George Odunga reason for reducing the prison term was informed by various judicial case laws that have stated their exists indeed a significant difference between recognition and Identification. In a case highlighted by Mahakamani.news: Man imprisoned for rape set free in appeal case, Justice Cherere had also freed a man because the trial court had not satisfied the three stage test for identification of suspects at night as stipulated in John Muriithi Nyaga v Republic  eKLR. She had stated that the trial court had failed to evaluate the nature of the light, the strength of the light, the size of the light and its position as relative to the appellant. She had also relied on the absence of any inquiries by the prosecution as to the lighting condition at the scene of crime.
Pursuant to the judgment rendered in October 2017, and aggrieved by the decision, Thomas Kivoi had appealed on the theory that it was not possible to be identified in the dark hence the Magistrates trial court had erred.
Intricacies of the trial case revealed that the convict had been charged with defilement. However, he had denied the charge on grounds that on that particular day of the alleged crime, he was nowhere near the particular crime scene as he was in his home.
Nonetheless, the court had relied on several witness testimony and statements in convicting and finding Thomas Kivoi guilty of the offence of defilement.
In a deposition made by HWM, the victim’s mother, the court was told that on March 27,2017 at around 6 am, after requests by ENK, the victim, to be accompanied to school, HWM had decided to escort her child for various reasons inter alia that it still dark outside due to presence of heavy clouds; the area was bushy and; the school was about a kilometer away from their home located in Kakuyuni at Kangundo in Machakos county.
“As I returned home after leaving ENK to proceeded to school, I heard someone scream. It sounded like my daughter, so I ran back,” said the victims mother.
It is then that she responded to the distress call and found one Kilonzo with a torch. However, Kilonzo was quick to state that he was passing by and had responded after hearing screams in Swahili of someone saying ‘don’t kill me.’
The two then joined efforts in searching for ENK and along the road they came across ENK’s exercise books which were scattered on the ground. As they were numerously calling out her name, a man ran and jumped onto a motorbike, turning its light out and veering off.
It is then that a joint effort between the two paid off as they found ENK inside an unfinished building with dust covering her skirt and socks. The victim then informed the mother that it was the convicted person, Thomas Kivoi alias Tom, who had molested her.
In a deposition made by ENK (in camera), the court had been informed that after HWM had left, a motorbike had by-passed her before immediately making a U-turn and stoping infront of her. The rider then inquired from the victim of her family background before offering her a lift which she immediately declined.
“He then went ahead and parked the motorbike. On seeing him packing, I started running back screaming, but he caught up with me, entangled me then threatened to harm me if I did not keep quiet,” she narrated.
It is then that she ferried her to the crime scene adjacent to a unnamed bar. He then forcibly removed her biker, unzipped his trouser before defiling her all while she struggled to set herself free.
“When he saw a torchlight being shone in our direction, he got up and fled to his motorbike,” she said.
The victim asserted that she knew the assailant by appearance, name and voice as he was a familiar face.
The court was further informed by the prosecution that Thomas Kivoi had been traced and was found locked inside his house. Through the help of the sub location’s Assistant Chief and by the fact that it was drizzling tire marks of a motorcycle had been trailed to the Kivoi’s house. Kivoi’s house had been broken into and smears of sperm were visible on his pants.
It was against this background that Thomas Kivoi had been apprehended and arraigned before a court of law with competent jurisdiction.
Finally, the court was informed that ENK had been taken to a clinic at Kangundo and later to the District Hospital. A clinical officer had confirmed that ENK had no pant, had muddy clothes, her face had bruises and her feet was full of mud when she was brought to the hospital. Upon examination it was conclusive that she had been defiled because her hymen was freshly torn and bloodstained, her private parts reddish and inflamed with a foul smell.
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