A Mombasa court has acquitted a clinical officer who had been charged with raping a female dialysis patient after the complainant died before the trial began, leaving the prosecution without the key witness needed to establish the alleged lack of consent.
Chief Magistrate Lucas Onyina on Tuesday found Dias Juma Wabwile, a former employee of Pandya Memorial Hospital, not guilty of rape and the alternative charge of committing an indecent act with an adult, ruling that the prosecution had failed to prove its case beyond reasonable doubt.
Wabwile had been accused of sexually assaulting the patient at the hospital’s dialysis unit on January 31, 2025.
In the judgment delivered on August 25, the court held that although the evidence raised strong suspicion, criminal liability could not be founded on suspicion alone.
“There is very strong suspicion that the accused, most likely, raped the complainant. However, suspicion, however strong, cannot be a basis of a conviction,” Magistrate Onyina ruled.
“The court cannot guess what the complainant
would have said, then make a finding on that basis.”
The prosecution called eight witnesses, including nurses, doctors, a government chemist and the investigating officer.
Two nurses testified that the complainant reported immediately after dialysis that the clinical officer had “slept with her” and directed them to a dustbin where a used condom was recovered.
DNA analysis presented in court established that semen found on the condom matched Wabwile’s DNA profile.
However, no witness testified to having seen the alleged incident, and the complainant died before recording evidence in court.
The accused denied the allegations, telling the court that the condom had been used during intercourse with his wife earlier that morning and that he had carried it to work intending to dispose of it.
His wife supported that account in her testimony and also told the court she had previously confronted the complainant over allegedly sending flirtatious messages to her husband.
In his ruling, the magistrate said the complainant’s evidence would have been central to determining whether any sexual act occurred without consent.
He held that while the nurses’ testimony was admissible to show the complaint was made, it amounted to hearsay on the question of whether the alleged rape actually occurred because the complainant was unavailable for cross-examination.
“The evidence on record, looked at as a whole, cannot safely lead to a conclusion that there is proof beyond reasonable doubt that the accused person had unlawful penetration of the complainant,” the court ruled.
Wabwile was acquitted under Section 215 of the Criminal Procedure Code.
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