Mother's fight for justice stalls after court dismisses mentally challenged daughter's case
A pregnant teenage in this picture captured on November 3, 2023. A court in Ndhiwa has dismissed a case in which a mentally challenged teenager was defiled and impregnated, due to lack of evidence.
What you need to know:
- A 13-year-old mentally challenged girl was defiled and impregnated, but the court dismissed the case against the suspect due to insufficient evidence.
- The girl's mother must now wait until her daughter gives birth in November for a DNA test to potentially resume the case.
- Police and the ODPP are trading blame over who is responsible for the failure to secure justice for the vulnerable victim.
In early March, Loice* noticed alarming changes in her 13-year-old daughter's body. The teenage girl, who is mentally challenged, was gaining weight and experiencing morning sickness—tell-tale signs of pregnancy.
For several days, the girl exhibited unusual behaviour, especially after waking up. Initially, Loice suspected malaria, but her fears were confirmed after taking her daughter to Ndhiwa Sub-county hospital, where medical tests revealed the adolescent had been defiled and impregnated.
Determining when the offense occurred proved difficult. Evidence that could have identified the suspect had already been lost as several days had passed since the girl conceived. Nevertheless, Loice's determination to seek justice led her to conduct her own investigation.
"She was able to reveal who committed the offence before I reported the case to police. The man was arrested and arraigned," Loice says.
However, the justice she sought for her daughter has been delayed due to insufficient evidence against the suspect. Officers from Ndhiwa Police Station arrested a man reported to have defiled the girl and brought him before the Ndhiwa Law Court, but the Office of the Director of Public Prosecution (ODPP) informed the magistrate that they lacked evidence linking the suspect to the crime.
Ndhiwa Resident Magistrate Brain Murangasia was forced to dismiss the case and close the file. Loice and her daughter now must wait until November when the girl gives birth before a DNA test can be conducted on the new-born and compared with the suspect's DNA.
In a letter dated March 24, 2025, addressed to the Officer Commanding Station (OCS) at Ndhiwa Police Station, Prosecution Counsel Moses Okerosi acknowledged that the minor is incapacitated and unable to provide her own statement. The prosecutor noted he was presented with statements from Loice and the investigating officer, along with medical documents confirming the defilement.
"In the minor's mother's statement, the mother states that she suspected that her child was pregnant and upon asking her, the minor stated that it is 'Baba Mercy wa duka' (the suspect) who was responsible," reads part of the letter.
According to court documents presented by investigating officer Norah Mokua, the girl—identified as JM by the Judiciary—was placed in a safe space after her pregnancy was discovered. Mokua informed the court she couldn't determine when the defilement occurred and had requested the court to detain the suspect for four days while gathering sufficient evidence for prosecution.
The court granted permission to hold the suspect at Ndhiwa Police Station until March 24, 2025, when the case was mentioned. Magistrate Murangasia closed the case citing lack of evidence against the suspect.
"This file is marked as closed. The respondent be released forthwith unless lawfully held," the magistrate wrote in the court file.
The ODPP defended their inability to indict the suspect. In his letter, Okerosi explained that the prosecution must establish certain elements beyond reasonable doubt to secure a conviction, including age, penetration, and identification of the accused.
Massive sentence
"To establish that the suspect is the individual who committed the offence, this is usually achieved through recognition by the victim, corroborative witness accounts or forensic evidence like Deoxyribonucleic Acid (DNA)," read part of the letter.
It continued, "Defilement is a serious and grievous crime, which attracts a massive sentence, and, therefore, just like all criminal cases the standard of proof is always on the prosecution and at no point does it shift to the accused, the bare minimum is always that the case should be proved beyond reasonable doubt."
Okerosi stated that the evidential threshold was not met to warrant proceeding with the case as filed by police. He noted that the minor cannot record her statement due to her incapacitation, and her mother's evidence is considered hearsay, which is inadmissible in law.
The prosecutor recommended waiting until the girl gives birth before conducting a DNA test to compare with the suspect's DNA.
"We advise that we let the victim herein to give birth, a DNA test be conducted before presenting the file back to our office for further advice, this will then enable us move the court vide section 31 of the Sexual Offences Act and request the Court to declare the victim a vulnerable witness and have the mother testify as an intermediary for the minor," Okerosi wrote.
The ODPP also revealed an existing land dispute between the families of the suspect and the survivor, noting that the suspect had previously accused Loice in February of falsely claiming he had impregnated her daughter—a complaint that was reported at Ndhiwa Police Station.
The case dismissal has drawn attention from Ndhiwa security officers, who deny responsibility for the outcome. Local police have called on the Judiciary and ODPP to improve their handling of such cases.
Sub-county Police Commander John Losia emphasized that his officers fulfilled their duty by arresting the suspect and bringing him to court, leaving the rest to the ODPP. According to Losia, the court should not have set the suspect free but instead released him on bond with instructions to appear after the girl gives birth.
"This would have necessitated the DNA test. He should not have just walked away freely," he said.
Losia also criticised the ODPP for presenting weak cases in court, noting that the prosecution initially agreed to proceed with the case only to later claim insufficient evidence against the suspect. He mentioned that police have previously raised complaints about this issue.
Suspect arrested
"Everyone should get justice regardless of your status in the community. ODPP had said the case qualifies to be presented in court," Losia said.
Ndhiwa Deputy County Commissioner Lucy Ndemo defended the security officers' actions, stating they properly arrested the suspect and prepared the necessary files.
"Ours is to ensure that perpetrators are arrested, files prepared and handed over to ODPP for any other considerations so that issues in the file are determined by the court," the administrator said.
*Name changed to protect the identity of the survivor's family
georgeodiwuor04@gmail.com