The High Court sitting in Embu has set aside a decision that acquitted former Embu DCIO Jervasio Njeru of accusations of raping a suspect inside his office.
Lady Justice Lucy Njuguna faulted trial Magistrate Henry Nyakweba for freeing Njeru saying the evidence produced in court by the prosecution was sufficient enough to warrant his conviction.
His acquittal led to the prosecution appealing the case saying the Magistrate made a mistake on several issues.
They faulted the trial court for dismissing the evidence of the medical officer who produced medical documents in support of the evidence and the charge on record.
Nyakweba was also faulted for failing to consider the report of the government’s analyst who produced a report in support of the evidence and the charge on record.
Njeru had been charged with various counts of rape and abuse of position of authority.
It’s alleged that on May 31, 2020 at around 5pm at Manyatta Police Station in Embu, he intentionally and unlawfully raped the suspect without her consent.
He faced an alternative charge of touching her private parts with his hands and penis.
The charge sheet reads that he took advantage of his position as a police officer to have unconsented sexual intercourse with the complainant at Embu North Directorate of Criminal Investigations office within the limits of the station to which he is appointed as sub-county criminal investigations officer. He pleaded not guilty to all charges.
The prosecution called 19 witnesses to prove its case.
One of the witnesses was the complainant in the case.
She narrated to the court how she received a phone call from a police officer named Simon.
Simon requested her to go to Manyatta police station regarding some Sh200,000 which she had received from her husband Stephen Kathuri and which she used to open a business at Ugweri.
She said her husband’s sister had fueled a disagreement between her and her husband and the police arrested her for the money that was owed.
She was then kept in custody at the station before the police officers released her on free bond.
She said when she was sent to a separate building for bond processing, Njeru took her to the inner office and raped her before letting her go.
The complainant said she left her underwear in his office out of confusion.
Her clothes were recovered later, as well as the tissue paper that Njeru ordered that she use to wipe him and herself.
She told the court that she did not scream or raise any alarm because she was afraid that Njeru would hurt her.
When she left, she reported the matter to a police officer who took her to the OCS where she narrated the ordeal in the presence of Njeru and senior officers.
“Njeru apologized and even offered to pay for my treatment so long as I lied that she had been assaulted by a stranger,” she said
But in his defence, Njeru said the complainant was his girlfriend for 4 years.
He said the trial court’s finding that the testimony of the complainant was not sufficient to prove penetration, should be upheld.
He said even the alleged tissue paper was not produced in court as evidence.
The Judge in allowing the state’s appeal said the evidence available shows that from the time Jane was arrested on May 30, 2020, she never left the cells until May 31, 2020, when she was released on free bond and just before she was sexually assaulted by Njeru.
“It is clear before peradventure that from the police station, the complainant was taken straight to Embu Level (5) Hospital where she was admitted for several days as she was being treated for the injuries that she sustained after she was sexually molested,” said the Judge.
The judge observed that the injuries detailed in the P3 form were sustained through forceful penetration which shows the absence of consent.
“Otherwise the injuries would not have been sustained,” she said.
The Judge concluded that there was sufficient proof that consent was not obtained.
She relied on the testimony and evidence of Dr Phillis Muhonja of Embu Level 5 Hospital who examined the complainant.
The doctor testified that the injuries sustained by the complainant were sustained through forceful penetration.
“From the evidence, there is no doubt that indeed there was forceful penetration,” said the Judge.
She found all charges to have been proved beyond reasonable doubt and set aside the decision of the trial court.
Njeru was subsequently found guilty and convicted of the offence of rape and abuse of position of authority.
He has been sentenced for 20 years for rape and 10 years for using his authority to commit.
