It is not mandatory for DNA test to be conducted in sexual offence cases involving underage girls where the victim has also been made pregnant, the High Court has ruled, highlighting a major win towards State's fight against defilement of children.
Justice Maureen Odero said lack of the DNA tests to provide paternity linkage of a child born out of an alleged defilement incident is not fatal to the Prosecution's case against the suspect.
According to the judge, the trial court also cannot be faulted for failing to order for the DNA tests to be carried out in defilement cases to confirm if the suspect is the biological father of the child.
"Section 36(1) of the Sexual Offences Act provides that a court may in appropriate cases direct that a DNA test be conducted for purposes of ascertaining whether the accused person had committed an offence. The operative word is “may”, which means at the discretion of the court. Therefore failure to conduct a DNA test does not negate a charge of defilement," said the judge sitting at the High Court in Nyeri.
According to the judge, a DNA test of the suspect would only serve to determine whether he was the father of the child, which is a different question from whether he had defiled the minor.
She made the ruling while dismissing an appeal by a man serving a 45-year jail term for defiling his 14-year-old granddaughter and making her pregnant. He was a night security guard at a secondary school in Karatina.
The man codenamed as Mr INW, to protect the identity of the minor, was sentenced on December 13, 2023, by Karatina Senior Principal Magistrate Sandra Kosgei.
The magistrate received evidence of six Prosecution witnesses including the minor, who gave a graphic account of what was done to her. Other witnesses included a medical officer and the man's two work colleagues.
Though the defilement was said to have occurred on January 28, 2022, at the family home, the minor was taken to hospital almost three months later for a medical examination after she began to feel unwell due to pregnancy-related health conditions.
It was at this point she disclosed to her grandmother about the defilement incident and the matter was reported to police.
In his appeal, the convict faulted the Prosecution and said that no DNA test was conducted to establish whether he was the biological father of the child the complainant was carrying.
But Justice Odero said the convict had not been charged with making the complainant pregnant. He faced a charge of defilement.
The judge backed the trial magistrate's ruling that even if the law (Sexual Offences Act) empowers the court to direct a person charged with a sexual offence to provide samples for tests including for DNA testing to establish linkage between the accused person and the offence, the same is not mandatory.
The court explained that the legal provision is not couched in mandatory terms and that medical or DNA evidence is not the only proof by which the commission of a sexual offence may be proved.
"The fact that no samples were taken from the Appellant for DNA testing does not mean that the charge of defilement was not proved. All in all the defence raised by the Appellant was not convincing. The defence did not in any way controvert the prosecution case and in my view the trial court rightly dismissed said defence," said Justice Odero.
Upholding the sentence of 45 years in prison, which was higher than the legal minimum sentence stipulated in the law, the court noted that the child had been subjected to great psychological trauma and humiliation and had been deprived of her childhood.
The law provides for a mandatory minimum sentence of 20 years if one is convicted of defilement where the victim is aged between 12 and fifteen 15 years. In this case, the victim was aged 14 years old. She was in Class Eight when the defilement occurred.
"It is a fact that the defilement caused the child extreme trauma and that it resulted in her bearing an unwanted child. This is a fact the child will have to deal with all her life," said the judge.
In his defence, the man denied having defiled his granddaughter and instead accused her of being a truant child.
He claimed the child was in the habit of having relationships with various boys in the neighborhood and when she fell pregnant she decided to blame him. The court said the defence was not persuasive.
