ERC, a police reservist, was caught in the act with a 17-year-old Class 7 girl by her mother.
The reservist was arrested and charged with defilement.
It was the second time the two were having sex, leading to a pregnancy. The first time was on November 11, 2017, according to the testimony of the minor in court.
At the sight of the mother, ERC pushed her a way and took off. But he could only run so far.
Police officers shortly apprehended him and detained him for more than a day before taking him in to court. Once in court, the police detained him for seven days without a court approval.
The court in Eldoret convicted the reservist of defilement and sentenced him to 10 years.
The mother told the court that on the fateful day that she caught the two in the act, she had sent the girl to the home of the reservist to buy pawpaws but she took inordinately longer. She them got apprehensive and decided to follow her, only to burst into the room and find them both naked.
Put on the stand, the girl testified that she was forced into sex, that the man grabbed her and threw her to his bed before undressing and penetrating her.
But now the “little aberration” of detaining him without court authority has come to give him some reprieve.
The High Court ordered that police be investigated for the illegal detention and that the reservist be tried afresh for the offence of defilement.
Article 49 (21) (f) the Constitution provides that once a suspect is arrested over a criminal matter, he must be produced in court within 24 hours.
His appeal before the High Court was that the prosecution treated him with contempt and abused his rights by not only keeping him in detention for more that 24 hours but also not offering any explanation for it.
“The appellant submits that his fair trial rights were contravened when he was arrested and held in excess of the 24 hours to be arraigned before court having been arraigned on Tuesday the 16th January 2018, having been arrested on Sunday the 14th of January 2018, and that the prosecution did not offer any explanation for the delay thus infringing upon his Article 49 (21) (f) and section 30 and 108 [of the Criminal Procedure Code] of the rights,” say court papers detailing his case.
The High Court quashed his conviction but did not set him free, ordering that his trial be conducted a fresh before a different magistrate.
“This court finds that the appellant’s one-day incarceration period at the Kapsowar police station from the 15th January 2018 to the 16th January 2018 constituted illegal detention and a gross contravention of the appellant’s fundamental rights,” court judgement rendered on November 9 reads.
The court also said that before he is tried a fresh, an investigation must be conducted against the Kapsowar police station on why the man was detained for more than 24 hours before being taken to court, and for another seven days without express permission of the court.
“This court is persuaded that a proper inquiry relating to the 24 hours pre-trial police incarceration outside the parameters of the law must be undertake prior to, and as a precursor of, a fresh criminal trial.”
The retrial of ERC will be predicated on the findings of the inquiry of his detention and should the court find that his rights were violated, a possible order of his release may be made.
“If the trial court finds the incarceration in excess of the 24 hours prescribed to have fatally contaminated the intended trial, then it may issue appropriate orders,” the judgement says.
