A court acquitted former Dandora police commander Samir Yunus on allegations of abusing his office by harassing junior women officers at the station after finding that he was fixed by one of his junior female officer.
The court found that there is overwhelming evidence that the Officer Commanding Station (OCS) and the complainant known JM were lovebirds for over three years before the material date.
And the female cop fixed the OCS of sexual harassment after they broke up.
A Milimani chief magistrate court acquitted him of all charges against him.
Yunus was on June 15, 2019 charged with sexually harassing a junior cop within the limits of Dandora police station.
Delivering his ruling on April 30, Senior Principle Magistrate Robinson Ondieki ruled that it was the duty of the court to find a defendant not guilty if there was any reasonable possibility consistence with innocence.
Further, he said it is not necessary that there should be many circumstances creating doubts when giving an accused person the benefit of doubt in a criminal case.
“A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused person is sufficient.”
“The verdict is that the prosecution has failed to prove its case as against the accused person beyond reasonable doubt and I acquit him under section 215 of the CPC,” ruled Ondieki
According to Ondieki reasonable doubt is not mere possible doubt.
“It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”
Ondieki said the absence of the P3 and relevant PRC form, was enough evidence that the junior cop was not sexually assaulted.
Furthermore he said, there was not enough evidence of assault or indecent assault against the OCS because the ODPP declined to charge him with indecent assault instead charged him with the offence of abuse of position authority.
Ondieki was of the opinion that where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tendered to be adverse to the prosecution.
“The prosecution must take available all witnesses necessary to establish the truth even if their evidence may be inconsistent.”
It was the junior cop’s case that on June 14 2019, Yunus grabbed her in the office, bit her cheek then sexually assaulted her.
She subsequently went to st Philips Medical Centre for treatment on June 16, 2019 and later on reported the matter to Inspector General of police Hilary Mutyambai about the harassment.
She obtained a PRC form which was filled on July 28, 2020 after reporting the case to DCI headquarters.
She alleged that she had to report the matter to International Jurist Commission (IJC) and other justice actors including Federation of Women Lawyers (FIDA), Parliament and International Municipal Lawyers Association (IMLA) because no action was taken.
On his part, Yunus alleged that they had a cool relationship and he frequently visited her in her house as often as they wished.
He said they broke up because the junior cop got pregnant but decided to extract it, further she declined to convert to a muslim and he walked away.
According to the prosecution, Yunus sexually assaulted her both in Dandora police station and at her house.
However, there was no P3 or PRC report filled to prove that medically, the offence was committed.
It was the investigation office’s case that the two were lovers and the charges were brought up by a jilted lover.
“The two were lovebirds and during the investigations, the two were still in love communication. The break up may have triggered the charged against the accused,” said the investigating officer.
Further he said that they “reluctantly recommended the charging of the accused as the complainant was not reliable as she would turn around at any time.”
Ondieki said by virtue of the duo being lovers who consented to befriend each other, he believed that it was consensual.
Further he said “the law on the topic of consent is not in doubt. Consent must be a free and voluntary consent. It is not necessary for the victim to struggle or scream. Mere submission in consequence of force or threats is not consent.”
“The relevant time for consent is the time when the act occurs. Consent, previously given, may be withdrawn, thereby rendering the act non-consensual. A previous refusal may be reversed thereby rendering the act consensual.”
Yunus through his lawyer Kimani Wachira alleged that St Philip Medical Centre was not registered with Pharmacy and Poisons Board and that it was not supposed to be operational as a health centre in the absence of the registration documents.
On the magistrate’s part, he wondered why the junior officer, an experienced police officer who at one time worked at gender related cases and used to take the victims to Nairobi and Mama Lucy hospitals sought medical attention in an unregistered facility.
The former OCS was previously charged with the offence of abuse of position of authority contrary to section 24(2)(a) of the sexual offences act 2006.
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