OPINION: Why Uber driver case may be tall order for Prosecution


The suspect Fredrick Mungai Njenga, an Uber driver in Mombasa
The suspect Fredrick Mungai Njenga, an Uber driver in Mombasa

In Summary

  • Indecent Act: Any unlawful intentional act which causes any contact between the genital organs of a person, his or her breasts and buttocks with that of another person.
  • Defilement: Committing an act which causes penetration where penetration means partial or complete insertion of the genital organs of a person into the genital organs of another person.
  • Sexual Assault: Unlawfully penetrating the genital organs of another person with any part of the body of another or that person or an object manipulated by another or that person.

A report about a Mombasa taxi driver who was released on Ksh. 50,000 bail after the Magistrate criticised his charge sheet elicited sharp reactions on Wednesday.

Also Read: Uber driver free for now as court says ‘mouth is not a genital organ’

Fredrick Mungai Njenga had been arraigned after police arrested him for allegedly forcing a Class 8 pupil to lick his private parts.

“…committing an indecent act with a child contrary to Section II (I) of the Sexual Offences Act No. 3 of 2006,” the charge sheet reads.

In what seems to have been a blunder on the part of the Prosecution, the Magistrate declined to have the suspect take plea.

“Get a proper charge sheet!” the Magistrate ordered, adding that the law does not recognise the mouth as a genital organ.

MULTIPLE CHARGES?

Legal experts however opine that the Prosecution could have presented multiple charges: sexual assault, indecent act and defilement.

Some believe that Sexual Assault would build the strongest case, followed by Indecent Act and lastly Defilement, ‘on the basis that the driver’s conduct could have led to the defilement of the boy.’

An Indecent Act is defined in the Sexual Offences Act, 2006 as “any unlawful intentional act which causes any contact between the genital organs of a person, his or her breasts and buttocks with that of another person.”

It is further defined as “exposure or display of any pornographic material to any person against his or her will, but does not include an act which causes penetration.”

DEFILEMENT CHARGE

In light of this, it remains unclear as to what the Prosecution’s next move will be when they return to court on Tuesday next week.

A defilement charge would only apply to “a person who commits an act which causes penetration.”

Penetration under Kenyan law means the partial or complete insertion of the genital organs of a person into the genital organs of another person.

SEXUAL ASSAULT CHARGE

The Prosecution may also find it difficult to present a sexual assault charge because it is preferred against someone who unlawfully penetrates the genital organs of another person with any part of the body of another or that person or an object manipulated by another or that person.

The exception to the rule is where such penetration is carried out for proper and professional hygienic or medical purposes

It adds that any person who unlawfully manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body, is guilty of sexual assault.

WHAT DOES THE CHILDREN’S ACT SAY?

The Prosecution may however decide to apply Chapter 141 of the Children’s Act that defines child abuse as physical, sexual, psychological and mental injury.

If this is the case, court proceedings may now focus on the child’s psychological or mental state.

Uber has since responded to the article on Citizen Digital saying they are cooperating with the police to help with investigations.

“This is a regrettable and shocking incident and what’s been described has no place on the Uber app. This would be a clear violation of our community guidelines. We take any incident of this nature very seriously and in cases like this, we immediately remove the driver’s access from the app. We are in contact with law enforcement to assist their investigation in any way we can,” the statement from the spokesperson reads.

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Story By Rachel Ombaka
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