Nairobi News

A caretaker who grabbed and dragged his tenant’s 14-year-old daughter into a vacant room during a power blackout and attempted to defile her is awaiting sentencing after conviction for indecent act with her.

Sammy Mungai had been charged with attempted defilement and an alternative charge of indecent act with a minor. Makadara senior resident magistrate Merissa Opondo on Friday found him guilty of the offence of committing an indecent act with a minor.

Indecent act means an unlawful intentional act which causes any contact between any body part of a person with the genital organs, breasts or buttocks but does not include an act that causes penetration.

Mungai committed the offence at an apartment in Githurai Kimbo, Nairobi on December 14, 2013. He has been in remand for six years – during his trial.

He seized the minor after she slid on stairs and fell due to power outage while on her way to a shop, carried her to the unoccupied room where he undressed and attempted to defile her as she resisted.

The minor tussled with Mungai for about an hour in the empty and dark room while repelling him and eventually succeed to free herself.

Gagged her

Mungai had gagged her with a piece of cloth and threatened to kill her in case she told anyone. The minor opened up to her mother after Mungai slapped her for reporting that he had bought a samosa for her and her friend, four weeks later.

Opondo ordered for his pre-sentencing report to be tabled before her on March 6. He had been charged with unlawfully and intentionally attempting to force himself into the minor which he was acquitted of.

Opondo cited a 2017 high court ruling that held that the prosecution in the offence of attempted defilement must prove the other ingredients of the offence of defilement except for the [attempted] penetration.

The ruling states that the prosecution is required to prove the age of the complainant [victim], positive identification of the accused person then prove the steps taken by the accused to execute the defilement which did not succeed.

“The prosecution in this regard [Mungai’s case] was therefore expected to prove the ingredients of the offence of defilement except for the penetration. The first ingredient to be proven must be that of the proof of age of the complainant,” Opondo said.

Opondo said the prosecution was expected to present evidence which led to show the complainant was a minor of specific age.

“The [victim] testified that she was 14 at the time of commission of the alleged offence. The prosecution did not present any evidence to prove the age of the [victim],” the magistrate said.

“The court, therefore, made a determination that the issue of the age of complainant was not proven by the prosecution thus the offence of the attempted defilement fell the accused acquitted.”