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Judicial CP - May 1998

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Daily Nation, Nairobi, 9 May 1998

Rapist gets stiffer term

By NATION Correspondent

A fisherman who appealed against a 10-year-jail term for raping a nine-year-old girl will now be caned and serve the term with hard labour.

Mwaziro Deri was told yesterday by Mr Justice P.N. Waki, sitting in Mombasa: "This court further orders that apart from the suspect serving a 10-year jail term, he should also receive five strokes of the cane together with hard labour."

Deri had been jailed by Kilifi Senior Resident Magistrate P.N. Ndung'u after being convicted of raping the minor at Takaungu village on July 26, 1995.

Deri appealed, however, saying the magistrate erred in law when he relied on "fabricated" evidence.

Besides, he argued, the magistrate failed to establish the validity of the complaint.

But the State counsel, Mr Kipng'eno, said the witnesses gave collaborative and direct evidence to implicate the accused.

The judge said it was proven beyond reasonable doubt that the accused raped the minor and infected her with a sexually transmitted disease.

Mr Justice Waki said a medical report had been produced in court to corroborate the evidence and proved that the rape took place and the victim had been infected.

The judge said two fishermen, who called at Deri's house to change their wet clothes, gave evidence confirming that they saw the minor in the bed on that day having tea.

Meanwhile, another man who had been accused of a charge of simple robbery was acquitted after the court dismissed the charge.

Mr Thomas Nyagah Kinyua was released by Mr Justice Waki.

Mr Kinyua had been sentenced by a Malindi court to 12 years imprisonment and six strokes of the cane. After the sentence, he was to be placed under five years of police supervision.

The charge stated that Mr Kinyua, while armed with knives and pangas, allegedly violently robbed Ms Stephanio Farmano of personal effects and Sh13,000 in cash.

During the incident, two people were lynched while the accused was saved by the police.

In his appeal, the accused said the magistrate erred in law after he convicted him without considering that an identification parade had not been conducted.

He argued further that no exhibits, such as the pangas and the knives or even the stolen items were produced before the court to prove that the robbery occurred on that day.

The judge said the sentence was unreasonable as the court only relied on one witness.

Mr Justice Waki doubted whether Ms Farmano, who was a key prosecution witness, had sufficient time to look at Mr Kinyua during the alleged robbery.

"Other witnesses ought to have been called to back up the violent robbery claim," the judge said.

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