High Court Reinstates Child Defilement Case after Squashing Lower Court Controversial Ruling

By Grace Gilo

The High Court in Mombasa has reinstated a sodomy case against a 20-year-old man accused of sodomizing a 4-year-and-8-month-old boy.

According to the Office of the Director of Public Prosecutions (ODPP), this decision followed the High Court’s quashing of a controversial ruling by Chief Magistrate Alex Ithuku, which had prematurely halted the prosecution.

Lady Justice Wendy Micheni Kagendo issued the ruling in response to a successful revision application by the Office of the Director of Public Prosecutions (ODPP).

Justice Kagendo criticized the trial magistrate for terminating the case and approved the prosecution’s request, presented by Prosecution Counsel Mr. Martin K. Mbote.

The case had stalled when the trial magistrate refused to grant an adjournment after a key medical witness, Dr. Khadija Abu Mondhar, was unable to attend court due to approved annual leave.

The prosecution had informed the court in advance and even offered a substitute medic witness, but the court insisted the case proceed or be closed, citing delays.

Justice Kagendo deemed the lower court’s decision improper, stating it unfairly prioritized the accused’s right to a speedy trial over the minor’s constitutional right to a fair hearing, as outlined in Article 25.

She emphasized that denying the prosecution the chance to present its key medical witness would severely hinder the pursuit of justice, especially in a case involving a vulnerable child victim of sexual violence.

“In her ruling, Justice Kagendo directed that the case resume from where it was left off, allowing Dr. Khadija to testify,” stated ODPP.

“The doctor, who has since resumed duty, remains willing to testify and present critical medical evidence, including the minor’s post-rape care form, P3 form, and lab results, which had already been marked for identification in court,” emphasized the ODPP.

The judge warned that no further adjournments would be allowed and directed the matter to be mentioned before Hon. Ithuku on July 17, 2025, for the fixing of a new hearing date.

In the case, Omar Ali, alias Mwalimu, is charged with two serious charges under the Sexual Offences Act No. 3 of 2006.

He pleaded not guilty to defilement contrary to Section 8(1) as read with Section 8(2) and Indecent Act with a Child contrary to Section 11(1) of the Sexual Offences Act.

“The particulars of the charges are that on December 20, 2022, in the Magongo-Mwagosi area of Changamwe sub-county, Mombasa, he intentionally and unlawfully attempted to sodomize a 4-year-old, 8-month-old minor,” revealed the ODPP.