• Sentenced reduced from nine years to five on appeal for the man; his wife was released as the court said she covered up the crime.
• The judge also found the man guilty of failing to protect the child from physical harm and therefore agreed with the trial court.
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A Garissa man serving serving nine years in jail for beating up a four-year-old orphan girl because she defaecated on herself will now serve five years in jail after winning his appeal.
The trial court had sentenced the man and his wife to serve nine years. They appealed, saying the sentence was excessive.
High court judge Ali Aroni on March 17 acquitted the wife of one count; she admitted to the offence to cover up for her husband. She said the girl defaecated on herself daily and she beat her with a broomstick to discipline her.
The court said despite her confession, it found her admission a mechanism to protect her husband.
The judge found the husband guilty of the second count of failing to protect the child from physical harm and therefore agreed with the trial court.
“Having noted the mitigation and remorse by the two appellants. I find the seven years meted out on the first count excessive. I will therefore set aside the sentence meted on count one and in its place fine the 2nd appellant the sum of Sh75,000, and in default, three years imprisonment.
So, five years for the man.
"As for the 1st appellant I will sustain the fine of Sh20,000 or two years imprisonment in default," the judgment read.
The prosecution had said at the time of the offence, the child was age four, an orphan. She was living with an aunt, her mother’s sister, and her husband in Garissa Township.
The prosecution said Alice admitted having assaulted the victim but denied she broke her arm. The husband confirmed the assault by his wife.
The victim was unable to speak and an intermediary introduced her to the court. The court therefore relied on circumstantial evidence.
The evidence before the court, with which the appellants concurred, was that the girl had injuries all over her body. Some were fresh, some a few weeks old.
Jeremiah Mosbei, a clinical officer at Garissa County Referral Hospital, said he examined the child on May 26, 2020. She had been taken to the hospital by police.
He further testified, without giving details, that the victim identified her assailant.
Mosbei found that she had fresh septic lacerations, redness across the nasal bridge extending to the left cheek. She had wounds on both ears. There were multiple healed whip marks on her thighs and abdomen, among others.
Dekow Mahamud, the chief of Iftin East, had been summoned by the pharmacist where the woman had gone to seek medical help for the victim.
On arrival, he found the child with the woman and the girl accused the man of having inflicted the injuries, though the woman said she assaulted the child. He saw the injures.
Zaitun Aden Hassan, a GBV officer, also testified she visited the child in hospital and saw injuries to the face, a swollen left elbow and swollen buttocks, injuries sustained from a beating.
She testified that the girl said the man had injured her.
Sgt Zeinab Hassan accompanied the child to the hospital. She, too, saw the injuries and learnt they were inflicted by the man.
The woman denied her husband beat the girl and said she came to their home with injuries from where she stayed earlier.
The man denied having beaten the child and blamed his wife. He said the fresh wounds were inflicted at his house.
(Edited by V. Graham)