Former Dandora OCS acquitted of sexual offence

Ondiek while delivering the ruling said that the officer was found not guilty as there was reasonable possibility consistence with innocence.

Further, he ruled that it is unnecessary to have many circumstances creating doubts when giving an accused person benefit of the doubt in a criminal case.

“A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused person is sufficient. The verdict is that the prosecution has failed to prove its case against the accused person beyond reasonable doubt and I acquit him under section 215 of the Criminal Procedure Code,” he ruled.

The Senior Principal Magistrate said the absence of the P3 and relevant PRC form, was enough evidence that the junior cop was not sexually assaulted.

Further, he found that there was no sufficient evidence of assault or indecent assault against the OCS because the prosecution declined to charge him with indecent assault and instead charged him with abuse of position of authority.

It was the junior cop’s case that on June 14 2019, Yunus grabbed her in the office, bit her cheek and sexually assaulted her.

She said she sought treatment at St Philips Medical Centre on June 16, 2019 and later reported the matter to Inspector General of Police Hilary Mutyambai.

JM obtained a PRC form which was filled on July 28, 2020 after reporting the case to DCI headquarters.

She alleged that she reported the matter to International Jurist Commission and other justice actors including Federation of Women Lawyers, Parliament and International Municipal Lawyers Association because no action was taken.

But Yunus told court that they had a good relationship and he often visited her house.

He argued that they broke up after the junior cop decided to terminate the pregnancy and declined to convert to Islam.

The prosecution claimed that Yunus sexually assaulted JM at Dandora Police Station and in her house.

However, there was no P3 or PRC report filled as medical proof that offense was committed.

During the hearing, the investigation officer told the court that the charges were brought up by a jilted lover.

“The two were lovebirds and during the investigations, the two were still in communication. The break up may have triggered the charges against the accused,” said the investigating officer.

Further he said that they “reluctantly" recommended charges against Yunus because the complainant was not reliable since the two were still in love even as he carried out investigations.

Ondiek said by virtue of the duo being lovers who consented to befriend each other, he believed that it was consensual.

"The law on the topic of consent is not in doubt. Consent must be a free and voluntary consent. It is not necessary for the victim to struggle or scream. Mere submission in consequence of force or threats is not consent," he said.

The Senior Principal Magistrate said that the relevant time for consent is the time when the act occurs.

Yunus through his lawyer Kimani Wachira alleged that St Philip Medical Centre was not registered with Pharmacy and Poisons Board hence it was operating illegally. 

Ondiek wondered why JM whom he described as an experienced police officer and who at one time handled gender related cases and took victims to Nairobi and Mama Lucy hospitals sought medical attention in an unregistered facility.