Former Kamukunji OCS Chief Inspector Samir Yunus who was accused of raping a policewoman at Dandora police station has been freed by a Nairobi court for lack of evidence.
Milimani Magistrate Robinson Ondieki acquitted Yunus of abusing his office by harassing junior women officers after finding that the prosecution failed to prove the charges against him beyond reasonable doubt.
“The verdict is that the prosecution has failed to prove its case against the accused person beyond reasonable doubt and l acquit him under section 215 of the Criminal Procedure Code(CPC),” Ondieki ruled.
Ondieki acquitted Yunus saying that there was overwhelming evidence to prove that the OCS was fixed by the complainant known as JM since the evidence on record shows that they were lovers and the charges were brought up by a jilted lover
The female officer had accused his boss of sodomizing her and biting her on the cheek at his office in Dandora police station
While setting the ex-OCS free, the magistrate concurred with Yunus’ defence lawyer Kimani Wachira that the evidence extracted from his client and the complainant’s mobile phones revealed that clearly there were love chats between the two confirming that they were indeed in a relationship for three years.
“It was the evidence of the investigating officer who said that the two were lovers and the two exchanged love chats even as at the time the case was in court as evidenced in the extraction by the forensic experts,” Magistrate Ondieki stated.
The court noted that according to the investigating officer’s testimony, he reluctantly recommended the charges against the OCS as the complainant was not reliable as she would turn around any time since the two were lovebirds and during investigations, the duo were still in love communication.
“It is the investigating officer’s testimony before this court that the break up may have triggered the charges against the accused. She was a jilted lover,” Ondieki stated.
The magistrate also noted that there was overwhelming evidence even from the prosecution witness Samuel Guto Oresi an employee of the Ministry of Internal Affairs stationed in State House who testified in court that the OCS and his female junior officer were lovers for three years and during the material date in 2018, they were in a relationship.
The court also states Guto who was a close friend to the accused and complainant also confirmed that the duo had ups and downs in their relationship and his bid to intervene as a mediator did not avail any long-lasting solution.
“It is no doubt that the accused and the complainant were lovers having consented to befriend each other, otherwise why consent to subsequent sexual intercourse intend of reporting to the seniors and seek a transfer on that account? I believe that sexual intercourse was consensual,” Ondieki ruled.
According to the magistrate, the prosecution also failed to prove that the former OCS sexually assaulted the complainant as alleged both at Dandora police station and at her house since there was no P3 form or medical reports filed to prove that medically, the offence was committed.
“In the absence of the P3 form and relevant PRC form, it was enough evidence that the complainant was not sexually assaulted,” Ondieki stated
Ondieki also blamed the police for failure to adduce evidence of the allegations of sexual harassment of Yunus by other officers at the police station.
“The investigation officer’s evidence in this matter was that she was given names of sexual harassment victims and with the names they spoke to the complainant and took statement but did not tell court what happened with the rest of the names of the alleged victims of sexual harassment,” the magistrate said.
He wondered why they never recorded any statement or called witnesses in court to corroborate the prosecution case that indeed the OCS used his position to harass women.
Further, the magistrate also blamed the prosecution for failure to call Corporal Kangogo and other officers who were on duty on the alleged date of the crime.
“Contrary to the prosecution case, the defence have produced extraction of the OB of those officers on duty on the alleged dates which include the complainant and the extraction of arms register to show that indeed on the date the accused is alleged to have been in possession of the firearm, he had returned the firearm to the armoury, is enough to cast a doubt on the evidence of the complainant,” Ondieki stated.
The court also noted that the medical facility where the complainant is alleged to have sought medical services after the alleged sodomization by the accused person was illegal in operation as the government did not register it.
“It is the evidence of the prosecution and the defence that St Philip Medical Centre was not registered with the Pharmacy and Poisons Board. As such it was not supposed to be operational as a health center in the absence of registration documents. It operated illegally attending to patients through the back door,” Ondieki ruled.
“On the flip side is that the complainant was an experienced police officer who at one time worked on Gender-related cases and used to take the victims to Nairobi and Mama Lucy Hospitals and it can not be discerned why she decided to seek medical attention in an unregistered health facility.”
The court went ahead to reveal that the investigating officer confirmed before it that the personnel at St Philip Medical Centre were not qualified to medically attend to a patient.
“I further note that the summary discharge and master register at the facility on the details of the complainant were at variance,” the magistrate said
During the hearing, the female officer told the court that she had been posted at Dandora police station in 2018 and thereafter the OCS used to call her on his mobile phone seeking to know whether she was married.
She testified that there was a time in 2019 when his boss called her into his office and suddenly grabbed her and caressed her boobs and put his hand into her private parts.
The complainant also informed the court that the OCS kept going to her house at Kiamumbi and on June 14, 2019, her boos grabbed her in the office and bit her cheek and sodomized her.
She thereafter sought treatment at St Philip Medical Centre on June 16, 2019, before reporting the matter to former Inspector General of Police Hillary Mutyambai about the harassment by her boss.
The female officer states she later reported to DCI headquarters and to PRC which was filed on July 28, 2020.
