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Kilifi court frees German accused of defiling Rwandese minor
German national Netzband Marvin when he appeared before Kilifi Senior Resident Magistrate Daniel Sitati on January 12, 2023 to answer to charges of defiling a 15-year-old Rwandese girl.
A Kilifi court has set free a German national who was accused of defiling a 15-year-old Rwandese girl in his home in Mtondia, on the outskirts of Kilifi Township, on diverse dates between January and February last year.
Kilifi Chief Magistrate James Mwaniki stated that the prosecution failed to prove beyond a reasonable doubt all four charges against Netzband Tim Marvin. The magistrate also noted that the man submitted his defence in court, but there were no submissions by the prosecution at the time he was writing the judgment.
“The court has carefully considered the charges herein, evidence on record, exhibits produced and submissions by the defense. There were no submissions by the prosecution at the time of writing this judgement. At least none was in the file,” said Mwaniki.
Court records show that Mr Marvin came to Kenya in 2023 to engage in farming. He initially arrived on a tourist visa before applying for a work visa.
He was charged with defilement, an alternative charge of an indecent act with a child, trafficking in persons, and child pornography. He was also charged with promoting a sexual offence with a child contrary to Section 12(a) of the Sexual Offences Act No. 3 of 2006.
According to Mr Mwaniki, there was no basis for the trafficking of persons offence because the victim used to go to Mr Marvin’s home voluntarily or in the company of her mother.
“Evidence that when she went to the accused person’s alone, she did this with the consent and knowledge of the mother, also remained,” he said.
“None of the means as by law defined to with threat or use of force or other forms of coercion, of abductions of fraud, deception, abuse of power or of position vulnerability or of the giving or receiving of payments or benefits was established by the prosecution in regard to the accused person in his interaction with the alleged victim,” Mr Mwaniki said.
In their submissions, Inspector Paul Osundwa from the DCI Anti-Human Trafficking and Child Protection Unit in Nairobi stated that the minor complained she had been drugged and was taken to the Government Chemist for examination, and the results turned out positive for psychotropic drugs.
Inspector Victor Odhiambo from the same DCI unit stated that upon forensic analysis of Marvin’s phone, there was an image of a male organ with a background appearing to be a bedroom. The detectives visited Mr Marvin’s home to establish where the photographic image had been generated and recovered several items, including bedding, cameras, and other gadgets.
During the phone analysis, they said that they also found pornographic videos on one of his phones. From the scene, detectives were convinced the image had been generated from the accused's home.
However, the magistrate argued that the prosecution failed to prove a case relating to child pornography and promoting a sexual offence with a child, as it was not clear to whom Marvin had sent the intimate photos.
“As it stands the prosecution case in regard to the count three and four is highly doubtful, the benefit of which doubt in criminal litigations is afforded to the accused,” he said.
The magistrate further stated that a P3 and PRC form by Mr Anthony Kaingu, a clinical officer, indicated that the minor had a broken hymen, which was an old scar, and no indication of bruises in the anal canal.
According to the magistrate, Mr Marvin’s contention that the minor may have lied when it became apparent that she would not win him over cannot be wished away, and so the possibility that she acted in concert with others, especially her mother, to make up a case against the accused could not be ruled out.
In the judgment, there are six messages alleged to have been retrieved from the minor’s social media account, where she purported that she was forced to frame a case against Mr Marvin.
Read: A father's horror: How poverty and religious manipulation enabled years of child abuse in Kilifi
It was also established that the minor had attempted to commit suicide after Mr Marvin asked her to stay away from him. This was after her mother asked him not to engage with her daughter.
“If in a case, on the one side you have a rogue and on the other a person of unblemished reputation, you will believe the one of unblemished reputation.
“But when neither side has too much to boast in the way of honesty and credibility, you will just as soon believe one as the other or brand both as liars, for there is no righteous man in Sodom and Gomorrah,” Mr Mwaniki said.
The minor told the court that she met the accused at Salty’s Hotel in Kilifi town on January 2, 2024, and spoke to him. Later, he was introduced to her formally by one of her mother’s friends.
In the company of her mother, they went to Mr Marvin’s home in Mtondia to hang out and left at about 1 am, after he showed them around his house and served them fermented cabbage. The minor said she wanted to exchange contacts, but realised that he already had her contact.
The following day after the visit, she found a message from the man saying he wanted to meet her at Beneath the Baobab, a famous entertainment and social joint on the beach in Kilifi. The minor told him that she did not want to socialise but sent him her pin location.
She disclosed that the accused had inquired about her age, to which she told him that she was 15 years old.
“He told me that me that he was attracted to me and that he had started making a life in Kilifi and that nothing would happen between us,” said the minor.
Marvin later told her that he wanted to visit her at their home on the outskirts of Kilifi town, and he arrived there at 11 pm, where he defiled her.
In his defence, Marvin denied defiling the minor and said he never knew her age, believing she was in her twenties, as she appeared very intelligent, had tattoos, a pierced nose, and was partying everywhere. He also admitted to taking prescription drugs, cannabis, and alcohol with the girl.
The Office of the Director of Public Prosecutions (ODPP), through Prosecution Counsel Nancy Njeru, is planning to appeal the decision.
