Nyamira Boda Boda Rider's Life Sentence In a Gang Defilement Of A 15-Year-Old Diabetic Girl

BY ERIC ABUGA

"...I was walking home with my father… They found us on the road…I was raped at the river by the accused. The accused took my rubber and stocking (witness cries in court). The accused tore my pants and raped me."

"...Babu was also present as I was being raped. The accused raped me and after he finished, Babu raped me at the same venue. The accused pushed me and made me to lay down. The accused removed his clothes as well. Babu had worn a trouser and the accused was in a sweater and trouser…”

This was the Court testimony of a 15 year old girl defiled by his neighbour and another man on the night of June 12, 2020.

In an appeal at the Nyamira High Court arising from a Magistrate's Court judgement, Brian Gichana had been accused of gang defilement. 

Gichana had been accused of having committed the offense in Nyamira South Sub-County within Nyamira County in association with another not before the court.

Gichana had appealed the Judgment and Sentence delivered in the Chief Magistrate’s Court at Nyamira in Criminal Case by W.C. Waswa on 29th September 2021 where he was sentenced to life imprisonment for gang defilement, while the sentence on stealing was left in abeyance.

The prosecution called called a total of six witnesses beginning with the complainant’s father.

The father testified that that he had on 12th June 2020, taken his daughter, to Nyamira Hospital at around 6pm. He testified that he first saw Gichana in the company of Zablon who had given the Appellant the motor cycle they had boarded to ferry them home. 

He stated that while on their way home, Gichana told them that the motorcycle had run out of fuel and they alighted and began walking home only to meet the Appellant again at the river at about 8pm after he used another route. 

The father stated that he was able to identify the Appellant using the torchlight from his phone. He explained that the Appellant, who was in the company of another man, assaulted him, stole his phone, food, and his daughter’s shoes. 

He further testified that the attackers took his daughter down the river to a bush. He added that even though he did not witness the actual defilement, he later found his daughter at the scene crying. 

He reported the incident to Nyagachi AP Post and later to Nyamira Police Station. He confirmed that his daughter was, at the time, aged 15 and was diabetic.

Samuel Nyaboga Getara a boda-boda rider, testified that he heard screams emanating from River Nyando that night. The following morning, he was informed by other riders and his aunt that the Brian had been involved in defilement.

Acting on this information, he, together with others, went to his brother Augustino’s house where the Appellant was found drunk and locked inside by his younger brother, Ondicho. 

He told the Court that that Ondicho revealed that the Appellant had given him a Techno phone before asking to be locked inside. The Appellant was arrested and taken to Nyagachi AP Post. 
The stolen phone was later recovered from the Appellant’s father’s house and handed it to the police.

Simon Mabire, also a boda-boda rider, confirmed that the Brian had been given a motorcycle by one Zablon to ferry the complainant and his father home, since the Appellant did not own a motor cycle. 

Later that evening, he heard screams from the river area. He identified the passengers ferried by the Appellant. He stated that information later reached them that the Appellant had “fallen down” with the customers, but they never saw him again that night.

Nyamira Boda Boda Shed (Courtesy)

Nyakundi Hesbon, a Clinical Officer based at Nyamira County Hospital examined the complainant on the night of 12th June 2020 and found no external injuries but observed spermatozoa, epithelial cells, and red blood cells in her vaginal samples. 

The findings confirmed defilement case. He noted that the hymen was already broken and healed. 

Police Constable Rukia Shabar testified that she took over investigations on 13th June 2020. From the statements, she established that the Appellant had ferried the complainants before the attack. 

She recounted that the complainant and her father positively identified the Appellant. Members of the public recovered the complainant’s blood-stained blue dress, black tights, and a condom wrapper from the scene, which she produced in court. 

She also confirmed recovery of the stolen phone which was traced back to the Appellant. She produced the complainant’s birth certificate which confirmed that she was 15 years old at the time of the attack.

Gichana admitted ferrying the father and the complainant on a motorcycle but claimed the motor cycle ran out of fuel after which he handed them over to another motorcyclist. 

He denied any involvement in the offences and alleged that the complainants falsely implicated him because they boarded another rider’s motorcycle. He did not call any witnesses.

In her Judgement Justice Justice Winfridah Okwany said; "I find that the ingredients of the offence of gang defilement under Section 10 of the Sexual Offences Act were proved beyond reasonable doubt."

While upholding the conviction on the charge of stealing, justice Okwany also ruled that; "I find that the Appellant’s unsworn statement consisted of mere denial that did not dislodge the otherwise watertight evidence that was presented by the prosecution witnesses."

In the upshot, the Judge upheld the lower Court judgement. "I find that the heinous nature of the crime committed against the victim herein being gang defilement of a minor coupled with the violence meted out on the minor justify the life sentence."