- The DPP supported the county coordinator for children services by adding that the mother of the child had not been appointed an intermediary.
- The prosecution further said the order by the lower court flew in the face of the Constitution and the Victims Protection Act.
The High Court has ordered for a fresh trial of a man who was set free after charges of defiling his 11-year-old daughter were dropped.
He is accused of defiling his daughter in Murang'a.
John (not his real name) was charged with incest in January 24, this year but it was withdrawn in April after the minor’s mother wrote a letter to the court seeking to have it withdrawn.
The court heard that on April 12, 2021, the victim’s mother wrote to the lower court, saying the complaint “arose out of a family dispute” with her husband and that they had agreed to have it withdrawn.
The prosecution did not object to the letter and the matter was withdrawn under Section 204 CPC. The accused was discharged and a cash bail refunded to depositor.
However, County Coordinator of children services appealed the withdrawal at the High Court seeking a revision.
It argued that the offence was a felony affecting a minor, who was not heard before the complaint was withdrawn, and that the withdrawal was against her interests.
The DPP supported the county coordinator for children services by adding that the mother of the child had not been appointed an intermediary.
The prosecution further said the order by the lower court flew in the face of the Constitution and the Victims Protection Act.
John, through his lawyer, opposed the revision. He cited Article 159 (2)(c) of the Constitution that promotes alternative dispute resolution and Section 176 of the Criminal Procedure Code which speaks to reconciliation.
He also relied on section 40 of the Victims Protection Act on restorative justice. He submitted that there was sufficient cause shown to have the complaint withdrawn under section 204 of the Code.
On December 14, High Court judge Kanyi Kimondo noted that the minor, who was aged 11 at the time of the incident, was not in court when the matter was withdrawn.
The judge further said John was facing a grave charge of incest.
“Although the learned prosecution counsel did not oppose the withdrawal of the charge, I find that the order was not in the best interest of the child,” the judge said.
He added that true, her mother and father may have resolved their domestic dispute but it did not cure the underlying complaint of incest.
In all the circumstances of this case, I find that the order discharging the accused was irregular, he said.
“The revision is accordingly allowed. The 2nd respondent shall now be presented on December 15, 2021 before any magistrate to take fresh plea and for directions on his trial,” Justice Kanyi ruled.
-Edited by SKanyara