Nairobi — The High Court in Mombasa has reinstated a sodomy case facing a 20-year-old man charged with sodomizing a 4-year-8-month-old boy after quashing a controversial decision by Chief Magistrate Alex Ithuku that had prematurely halted the prosecution.
The ruling by Lady Justice Wendy Micheni Kagendo was in response to a successful revision application filed by the Office of the Director of Public Prosecutions (ODPP).
Justice Kagendo faulted the trial magistrate for terminating the matter and allowed the revision application by the prosecution through Prosecution Counsel Martin Mbote.
The case had stalled after the trial magistrate declined to grant an adjournment when a key medical witness, Khadija Abu Mondhar, failed to attend court due to being on approved annual leave.
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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 found the lower court's decision improper and ruled that it unfairly elevated the accused's right to a speedy trial over the minor's constitutional right to a fair hearing under Article 25.
Justice Kagendo further underscored that denying the prosecution an opportunity to present its final and key medical witness would have severely undermined 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 to allow Dr Khadija to testify.
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.
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 years, 8 months old minor.
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