A nurse who was jailed for four years for procuring an abortion for a 17-year-old Form 4 student has lost a bid to reverse his sentence.
Francis Mutunga was charged with the offence of concealing birth contrary to law.
It was alleged that on May 29, 2015, in Makueni county, Mutunga with another not before court secretly disposed the dead body of a baby girl who had been delivered by a minor, to conceal its birth.
He faced a second count of killing an unborn child by administering drugs to the minor that prevented the child from being born alive.
After a full trial, the magistrate convicted him on count two and sentenced him in July last year to four years imprisonment.
Mutunga, however, appealed the lower court’s decision.
He argued that the magistrate erred in law by relying on insufficient or no evidence to substantiate the offence of killing an unborn child in the absence of any of the primary elements of malice or aforethought.
Mutunga added that he was on official duty during the commission or omission of the offence.
The accused also said that the extracts produced by him showing the treatment he administered do not show any malice aforethought on his part.
He submitted that the reasoning by the trial magistrate was marred by errors, and totally disregarded the defence testimony and real evidence.
Mutunga also argued that the prosecution’s evidence was marred by inconsistencies and did not meet the required standard of proof.
The suspect added that the evidence by the girl which the trial magistrate relied on was not corroborated and that the minor could not name the pills she was given or produce evidence of the same in court.
High court judge Hedwig Ong'udi while delivering her judgment said that she did not see how premature labour could change so fast into mild abdominal pain and eventually a minor illness.
She agreed with the trial magistrate that it does not require a medic to tell that premature labour is an emergency case.
Further, Mutunga had said that he had referred the girl to a major hospital but his records did not reflect that.
But later in re-examination, Mutunga said he had done the referral in the girl’s patient book.
“So which is which?” the judge questioned.
“In a nutshell, the appellant’s evidence was marred with contradictions and inconsistencies which only served to amplify his incredibility. The prosecution’s case was consistent and corroborative,” Judge Ong’undi said.
As for the likelihood of ill motive alluded to by Mutunga, the judge said that the evidence on record did not point to such, not even remotely.
She said Mutunga confirmed that he had no grudge with either the minor or her mother and that they had no reason to frame him for the offence.
“The minor was not trying to shift blame because she had pleaded guilty and it was not shown that she had been promised anything in exchange for her testimony,” the judge ruled.
The judge said the weight attached to the girl's evidence was in her view not unnecessary and that ground of appeal failed.
“The result is that the appeal lacks merit and is dismissed. The conviction and sentence are upheld,” Ong'udi ruled on August 15.
It was the prosecution’s case that the girl who was a Form 4 student left for school from home on May 29, 2015. She did not return home and this got her mother concerned.
Her mother said that when her daughter did not return home she called the headmaster who informed her that the girl was not in school that day.
The minor on the other hand testified that she had conceived in 2014 and kept it from her mother.
On the days she disappeared, she was pregnant and had disclosed this to her friend who referred her to Malili who was Mutunga’s co-accused.
Malili then referred her to Mutunga after giving her Sh3,000 to pay him and his phone number for purposes of communication. Her intention was to get rid of the pregnancy.
The said Malili gave her directions on how to reach Mutunga.
Mutunga allegedly directed her to his house where he inserted some pills in her vagina and after some time a jelly-like fluid started to flow.
He then injected her on the arm. Mutunga had also wanted to have sex with her but she declined. She gave him the Sh3,000.
The minor added that she went to Malili’s home who made her lie on a seat and made her strong tea. At 7:00 pm she swallowed pills given to her by Mutunga.
She then felt as if she had labour pains and the foetus came out at about 11pm. She released it into a washbasin given to her by Malili who told her not to look at it as it was a taboo to do so. She felt relieved and slept.
She woke up early morning and left for school though she was bleeding heavily.
At school, the principal wanted to know where she had been but she declined to answer and was suspended.
The money Malili spent on her was refunded by her boyfriend Joshua Mwendwa whose number she had given to Malili on request.
Meanwhile, the minor’s mother was on her way to school when she met her daughter who was crying. She narrated to her all that had happened.
The court heard the girl’s breasts were producing milk and she told her she had aborted and thrown away the baby.
Corporal Alice Mureithi testified that Malili was a midwife who linked the girl with Mutunga a health officer at Ndibani health centre.
They met and he carried out the abortion which went well as she got no complications.
She went to school the next day but was sent home for absenteeism. She stated that the student was taken to Makueni hospital since she was having pain in the abdomen and breasts and it was confirmed she had had an abortion.
She also confirmed that the minor took the police officers to Mutunga’s home where the abortion had been done.
In cross-examination, she said Mutunga told them he is a medical doctor but he did not say whether he runs a clinic.
Emmanuel Loiposha, a medical doctor from Makueni hospital said he examined the minor and the ultrasound did show that she had a complete abortion.
His observation from the defence’s treatment notes showed the girl had premature labour subsequent to a pelvic inflammatory disease.
Mutunga in his defence stated that he had a dispensary as a nurse and only knew the girl in court as one of the patients he had treated.
That on a material day, he was not in Kivani as he was on duty at Ndimbani dispensary where he works. He later went home, about 20kms away.
He said that he had an extract of an outpatient register of the material day which showed that the girl went to his clinic complaining of severe abdominal pains.
He had another register on medication and another one showing the HIV status.
He further stated that the patient’s pain was in the uterus and he found out that she was pregnant. He recorded that she had premature labour due to pelvic inflammatory disease.
He went on to testify that the minor had vaginal discharge and itches. Since she was not accompanied by an adult he only attended to her because she told him she was 18 years of age.
He denied making sexual advances at her or inserting drugs in her private parts.
