How ex-cop convicted of neglect of official duty won appeal

Doreen Nkatha had worked as a house help at a home in South C for a while but the events of February 15, 2014, were a turn to the dark side.

On the day, her employer accused her of stealing and decided to take matters into her own hands and 'punish' Nkatha.

The punishment turned into an assault with the lady inserting a beer bottle into her helper's private parts and burning her arms with a hot iron rod.

After the ordeal, Nkatha was taken to the police station where she was booked and arraigned three days later on February 18 for plea-taking.

She informed the magistrate of what she had endured and the court directed that she be taken to the hospital for treatment.

This did not however happen immediately and Nkatha had to endure the pain and discomfort of her injuries for a while.

When two of Nkatha's friends visited her at the police station, they found that she was hurting.

When they inquired why she was yet to be taken to the hospital, they were told by the Deputy OCS Zuhura Khan, that there was no available vehicle to drive her there.

A woman who had been arrested on the same day as Nkatha overhead this.

Sometime later, the woman posted bail and when she went back to the station on February 20, she found that Nkatha was yet to be taken to the hospital.

The good Samaritan donated her vehicle to escort Nkatha to the hospital but the Khan refused indicating that there was no police escort.

Nkatha's state drew attention from other officers, and two of them went to Khan, who was acting OCS at the time, inquiring why the detainee had not been taken to the hospital.

Khan is said to have accused them of being rude and threatened them with insubordination.

Come February 23, the two cops called the Medicines Sans Frontiers in Mathare, and an ambulance came for Nkatha.

A clinical officer at Medicines Sans Frontiers said on examination, her arms were burnt and her outer female genitalia was bleeding.

Nkatha was referred to Nairobi Women’s Hospital for further treatment, where she was found to have bacteria in her labia majora. 

Sometime between Nkatha's arrest and the day she was taken to the hospital, a report was made to the Independent Policing Oversight Authority (IPOA).

A now-former investigation officer who was probing the report said she interviewed Nkatha "who did not look okay".

On December 3, 2015, Khan was charged with neglect of official duty contrary to the law.

When placed on defence, she told the court that Nkatha did not raise any complaint before she was taken to court for plea-taking.

Maintaining her innocence, Khan added that when the detainee's condition was brought to her attention, action was taken.

The Milimani Chief Magistrate's Court found her guilty of the charges against her and she was convicted.

In a judgement on January 9, 2020, Khan was sentenced to pay a fine of Sh10,000 in default and serve three months imprisonment.

Being dissatisfied, she filed an appeal challenging her conviction and sentence before High Court Judge Diana Kavedza.

She challenged the prosecution's evidence against which she was convicted.

Khan also contended that the prosecution failed to call critical witnesses in her case and that the trial court erred in handing out an excessive sentence.

The High Court identified the key elements in the neglect of official duty as; Khan was employed in the public service for up to 25 years.

The other element was that she was bound either by common law or by a written law to perform the duty of the subject of the charge.

The Court however stated that the mere fact that Khan was a police officer did not place a duty on her and no one else the obligation to take Nkatha to hospital.

"The prosecution needed to identify a provision of the common law and or written law imposing the duty on the Appellant to take PW1 (Nkatha)to hospital," the court document reads. 

On the third element that Khan wilfully neglected to follow the February 18 court order to take Nkatha to the hospital, the Court noted that this was not specifically directed to the former.

Judge Kavedza pointed out that when the OCS, who was off duty at the time, received the directions of the court, he assigned a corporal Maithya to investigate.

The Corporal however neglected the duty.

The High Court said it was curious that he was not charged.

Justice Kavedza further noted that when Nkatha was taken to the hospital on February 23, the order of the court was complied with.

"By the time the Appellant was charged on December 3, 2015, the alleged neglected act had already been performed. There could therefore not arise a case of neglect of duty when the act for which the offence would be based was, and had in fact been, performed," she said.

She said for the offence of Neglect of Official Duty to be proven, not only must the neglect be wilful and not merely inadvertent, but it must be culpable in the sense that it is without reasonable cause or justification.

The judge went on to state that the conviction cannot be said to have been safe.

"Put differently, the prosecution did not prove its case to the standard required by law, beyond reasonable doubt," she said.

In a judgement on September 29, Judge Kavedza allowed the appeal, quashed the conviction and set Khan's sentence aside.

"The appellant shall be set at liberty forthwith unless otherwise lawfully held," the judgement reads.